113 S.E. 583 | S.C. | 1922
Lead Opinion
September 1, 1922. The opinion of the Court was delivered by The appeal is from an order of Hon. S.W.G. Shipp, Circuit Judge, overruling demurrers to the first cause of action of the complaint in an action brought by plaintiff as payee to recover upon certain promissory notes. The first cause of action of the complaint will be incorporated in the report of the case.
The demurrers were interposed upon the ground that it affirmatively appears upon the face of the complaint that the defendants, Mrs. E.S. Spires and M.A. Laird, who are the appellants here, are liable, if at all, only in the capacity of endorsers, and that the complaint fails to state a cause of action as against them, in that it is not alleged in said first cause of action that the notes referred to were presented at maturity to the makers, nor that due notice of dishonor was given to said endorsers. We think the question is to be determined in the light of certain provisions of the Code of Civil Procedure, 1912, Section 212 is as follows:
"In pleading the performance of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance; but it may be stated generally that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading shall be bound to establish, on the trial, the facts showing such performance. In an action or defense founded upon an instrument for the payment of money, it shall be sufficient for a party to give a copy of the instrument, and to state that there is due to him thereon from the adverse party a specified sum, which he claims."
In conformity with the express provisions of Section 212, the complaint here sets out copies of the notes, and *152
alleges that a specified sum upon said notes became due and payable "by the defendants to the plaintiff on the 1st day of October, 1920." Considered in connection with the other provisions of Section 212 to the effect that it shall not be necessary to state the facts showing performance of conditions precedent in a contract, but that a general allegation of due performance shall be sufficient, in connection with the provisions of Section 169 permitting all parties to a note to be included in the same action, and in further connection with the provisions of Section 209, requiring that pleadings shall be liberally construed, we think the allegations of the first cause of action were sufficient to charge the appellants with liability as endorsers. If it be assumed that copies of the instruments set out in the first cause of action disclosed that appellants were indorsers (Shull v. Gladden,
The order appealed from is affirmed.
MR. CHIEF JUSTICE GARY and MR. JUSTICE FRASER concur.
Concurrence Opinion
I concur in the result upon the ground that the complaint alleges an agreement on the part of the partnership to execute notes for the amounts stated payable at the dates stated, and the fact that the notes were not executed in the apparently agreed form does not prevent maintaining the action *153 upon the original agreement. I agree to the proposition that under the Negotiable Instruments Act parol evidence is inadmissible to change the status as an indorser of one who places his signature upon an instrument before its delivery to the payee, otherwise than as maker, drawer, or acceptor.
I do not agree to the proposition that, in an action against an indorser as such, it is not necessary to allege the essential elements of his liability, among which are presentment for payment on the day of maturity and prompt notice, as required by the Act, to the indorser of non-payment. There is no reason for a departure from the well-established rule of pleading that whatever must be proven must be alleged; that these facts are necessary to be proved is conceded in the leading opinion.
In Treadway v. Nicks, 3 McCord, 195, it is declared:
"The rule is, that it is incumbent on the plaintiffs to state such a case on their record as will clearly show the defendant's liability. Now to charge the defendant, it was indispensably necessary that the order should have been presented to Carr, and that he should have refused to have accepted or had accepted and not paid, and that the defendants should have had notice of the non-acceptance or non-payment by Carr; and this count contains no such averments."
In 8 C.J., 901, it is said:
"Where it is sought to charge the drawer or the indorser, presentment, demand, non-payment, and notice thereof, where conditions precedent to his liability must be substantially alleged, or a sufficient excuse for the omission must be stated."
Mr. Randolph says (Volume 3, § 1204):
"The indorser of a negotiable bill or note is only liable upon receiving due notice of its dishonor. And such notice must be proved, and cannot be presumed to have been given. *154 And it should be specifically averred in the pleading, and not simply stated as `due diligence.'"
In Bliss, Code Pl. (3rd Ed.), § 387, it is said:
"Every collateral fact necessary to give effect to the main charge should be stated. * * * Thus notice when necessary to create a liability must be alleged. * * * A demand is sometimes necessary * * * to show a conditional liability by parties to commercial paper. * * * Where the demand is necessary it must be pleaded."
In Conkling v. Gandall, *40 N.Y., 228, it is held:
"If it is necessary as against indorser (which it unquestionably is) to establish his liability, to prove a demand of payment and notice of dishonor of the note, it is incumbent upon the pleader to state these facts, otherwise the cause of action is defectively stated."
To the same effect are: Kennon v. McRae (Ala.) 3 Stew. P., 249; McDougal v. Rutherford,
It is conceded that the question is ruled by the provisions of Section 212 of the Code relating to the method permitted of pleading conditions precedent. That section provides that in pleading the performance of conditions *155
precedent in a contract it shall not be necessary to state the facts showing such performance, but that it is sufficient to state generally that all of the conditions have been duly performed. The conditions precedent in the case at bar are that demand was made upon the payer at the maturity of the note, and due notice of non-payment given to the indorser. There is not a hint in the complaint that the plaintiff recognized the existence of any such condition precedent, and not the semblance of an allegation general or specific that they were fully performed. It is sought to cover this defect in the general statement that the defendants are indebted to the plaintiff; an allegation that would be appropriate as well to their liability as makers. In the case ofHollings v. Bankers' Union,