| N.Y. App. Div. | Jul 1, 1898
Without considering any other reasons, it seems to me that this judgment must be sustained for the reasons given by the court below. When a copy of the instrument sued upon is set forth in the complaint, and that instrument on its face shows the existence of a valid consideration, no other averment of a consideration need be found in the complaint. (Prindle v. Caruthers, 15 N.Y. 425" court="NY" date_filed="1857-06-05" href="https://app.midpage.ai/document/prindle-v--caruthers-3611521?utm_source=webapp" opinion_id="3611521">15 N. Y. 425.) In a complaint that)is deemed averred which, by reasonable and fair intendment, can be implied from the facts therein stated. (Marie v. Garrison, 83 N. Y. 23.)
The instrument in question, after several direct promises on the part of the defendant Knight to pay the plaintiff Wood certain sums of money at specified dates, concludes as follows:
“ All former agreements, both written and verbal, between said Knight and said Wood, particularly agreement of April, 1894, are hereby rendered null and void and of no effect whatsoever.”
It is then signed by each of the parties.
It is quite true that the instrument does not say what the agreements so rendered null and void were. It does not, in terms, appear that, by the discharge of any such agreement, Knight was relieved from any burden, or was in any way benefited thereby. 35Tor does it appear, in terms, that any disadvantage thereby accrued to Wood. But it must be noticed that Wood signs the instrument as well as Knight, and that fact on the face of the paper imports a promise of
A reasonable construction of the paper imports mutual obligations assumed and mutual promises made. And if mutual promises exist therein, a sufficient consideration appears on the paper itself. (Nellis v. De Forest, 16 Barb. 61" court="N.Y. Sup. Ct." date_filed="1852-01-05" href="https://app.midpage.ai/document/nellis-v-de-forest-5458498?utm_source=webapp" opinion_id="5458498">16 Barb. 61, 65.)
If there is a consideration apparent for the contract set forth, then, whether there are or are not averments sufficient to warrant a recovery for so much as rests upon the guaranty of the defendant, is not important upon the consideration of this demurrer. A cause of action for the other obligations assumed by the defendant in the contract being sufficiently averred, the complaint was not subject to a demurrer on the ground that it does not state facts sufficient to constitute a cause of action.
The interlocutory judgment appealed from should be affirmed, with costs, and with leave to the defendant to answer over within twenty days after the entry and notice of this judgment, and upon payment of the costs.
All concurred.
Interlocutory judgment affirmed, with costs, with leave to the defendant to answer over within twenty days after entry and notice of judgment, upon payment of costs.