Ward v. Sackrider

3 Cai. Cas. 263 | N.Y. Sup. Ct. | 1805

Per curiam, delivered by

Spencer J.

There are two counts in the plaintiff’s declaration, one for money had and received, another on a memorandum in writing. The latter count states, that by a note or memorandum in writing, the defendant acknowledged to have received of the intestate, ⅜4⅛, which he promised to refund, if the intestate would make it appear that he could not hold a certain lot of land, sold and quit claimed by the defendant to him, averring that the memorandum meant, that if the title so conveyed, should prove defective, then the money was to be refunded; averring also, that the intestate, before his death, and the plaintiff since, had made it appear, by good and sufficient evidence, to the defendant, that the intestate could not hold and possess the said lot of land by virtue of the said quit claim. To the first count the defendant has pleaded non assumpsit, and to the second in bar, that the intestate did not in his life time, and the plaintiff has not since his death, made it appear to him, that he was not able to hold the said lot of land by virtue of the said quit claim.

To this last plea the plaintiff has demurred specially ; that the plea in bar amounts to the general issue.

That the plea is vicious, and amounts to the general issue, is beyond a doubt. The defendant’s counsel, sensible of this, insist that the second count in the declaration is bad. 1st. Because the memorandum is declared on as a specialty, and 2d. because the averments do not correspond with the true exposition of the contract.

The first objection is not well founded. The consideration is expressly stated to be the §42, admitted by the memorandum to have been paid by the intestate to the defendant. An averment of that payment would have been superfluous. This objection is of no weight.

The second objection has more weight, and might be fatal but for one circumstance. The second plea is to the whole cause of action, and extends as well to the second count as the first, which is confessedly a good count. If, therefore, this plea be considered in the light of a general demurrer, on the supposition that the plaintiff has committed the first fault in pleading, still the plaintiff is entitled to judgment, on the ground that one of his counts is good, and thence no objection to this result; because, on that count, if the plaintiff has a just right to recover, he can take his verdict, and it is broad enough to embrace his case. The plaintiff must have judgment.