EICHLIN v. HOLLAND TRAMWAY CO. ON demurrer to narr. 68 New Jersey Law 78. Before GUMMERE, CHIEF JUSTICE, and Justices VAN SYCkel, GarRISON and GARRETSON. GARRISON, J. The demurrer filed to the declaration cannot be sustained. That pleading is, it is true, redundant to the point of embarrassing the issue, but inasmuch as it sets out a cause of action it is good upon general demurrer. The gist of the action shown is that the defendants maintained in the highway things that were at once a public nuisance, and the actual cause of private injury of a physical nature to the plaintiffs. This answers all of the causes assigned for demurrer that have any substance. Judgment upon demurrer is given for the plaintiffs.1 HARTFORD BANK v. GREEN, THOMAS & CO. 11 Iowa 476. BALDWIN, J. The plaintiff seeks to recover of Key, Foster, et al., as makers, and of Green, Thomas & Co., as indorsers, of a promissory note which reads as follows: BURLINGTON, Dec. 5th, 1857. Twelve months after date we promise to pay to the order of Green, Thomas & Co., one thousand dollars currency, value received with ten per cent interest after maturity. (Signed) CHARLES FOSTER, (Indorsed) A. KEY, and others. GREEN, THOMAS & Co. In order to show such diligence against the makers as to charge the indorsers, the plaintiff in the petition alleges that the defendants by their said undertaking agreed to pay said note at the city of are collected in Ames, Cases on Pleading (1905) 314, n. 4. See also Pomeroy, Code Remedies (5th ed. 1929) §§ 436, 438. Compare Clark, Code Pleading (1928) 196-202. 1 See Tucker v. Randall, 2 Mass. 283 (1807). In Bean v. Ayers, 67 Me. 482 (1878), the court said (p. 488): “A demurrer complains of too little and not too much matter in a declaration. The maxim utile per inutile non vitiatur applies. The remedy may be to move to strike out or reduce useless and redundant allegations. Upon inspection, the court may order it to be done." Burlington, at the maturity thereof. It is further averred that when said note became due, "it was duly presented for payment at the Banking House of Coolbaugh & Brooks, in said city, and notice of non-payment given to the makers thereof by notices deposited in the post-office of said city; that none of the makers thereof could be found in said city to whom said note could be presented for payment; nor had any of said makers any known place of residence in said city, diligent inquiry having been made to ascertain the same.” Copies of the note and the protests are annexed to and made a part of the petition. The note is dated at Burlington, but is not made payable at any particular place. The defendants, Green, Thomas & Co., demurred to this petition, alleging as a cause therefor, a variance between the note described in the petition and the copy annexed thereto. This being sustained the plaintiff appeals. It is claimed by the appellants that as the petition charges that the note was made payable at the city of Burlington, the defendants by their demurrer admit the truth of the allegation thus made, and are estopped thereby from saying that the note was not properly presented so as to charge the indorsers. A demurrer only admits such facts to be true as are well pleaded. The plaintiffs in order to recover as against the indorsers must show due diligence against the makers. The plaintiff in the petition sets forth the diligence used, and the note being made payable at no particular place it was therefore payable at the residence or place of business of the makers. The diligence used becomes a question of law, and if all the diligence used by the holder is set out in the petition it can be determined upon demurrer as well as otherwise whether the indorsers are liable or not. The copy of the note contradicts the allegation in the petition, that it was made payable in the city of Burlington. No place of payment is designated in the note; nor is it alleged that there was any subsequent agreement between the parties that it should be paid in said city. In the absence of any place being designated where the same is payable, the law fixes such place at the residence, or place of business, of the makers. The plaintiff does not show that such place of residence was not within the state or unknown to the holder. It barely shows that it could not be found in the city of Burlington, and that the inquiry was confined to that place alone; and none even was made of the indorsers thereon who were residents of said city.1 Judgment affirmed.2 A part of the opinion not material to the question of pleading is omitted. 2 Suppose a declaration in ejectment alleges that the land was demised to the plaintiff on January 2d of a certain year, and that thereafter, to-wit, on January 1st of said year, the defendant ejected the plaintiff. Is the declaration good? See Wyat v. Aland, 1 Salk. 324 (K. B. 1704); Stephen, Pleading (Williston ed. 1895) *414-*415. LYDECKER v. ST. PAUL CITY RAILWAY CO. SUPREME COURT, MINNESOTA. 1895. 61 Minnesota 414. APPEAL by plaintiff from an order of the district court for Ramsey county, Brill, J., sustaining a demurrer to the complaint. Affirmed. The complaint alleged in substance that plaintiff was a passenger on defendant's electric street car; that, on approaching the cross street where he wished to alight, he notified the conductor, who signalled the motorman to stop; that in consequence, and for the purpose of stopping on the farther side of said street, the motorman reduced the speed of the car; that at a point in the middle of said street and while the car was running at a low rate of speed, to-wit, at a speed safe for a passenger to step from the same and not exceeding two miles an hour, plaintiff stepped from the car and started to pass around the rear end, and without expecting or looking for a car on the other track, by reason of the facts above stated, started directly to cross the other track; that as he was in the act of stepping thereon a car from the opposite direction, running at the rate of six miles an hour, struck and injured plaintiff; that he heard no bell rung from said car, and that plaintiff received said injury solely by reason of said carelessness and negligence of defendant. MITCHELL, J.1 It is clear from the most casual inspection of the complaint that it does not state a cause of action. No act of negligence on part of defendant is alleged. It is alleged that the car which struck the plaintiff was running at the rate of six miles an hour; also that plaintiff heard no bell rung on the car; but there is no allegation that six miles an hour was an improper or unlawful rate of speed, or that no bell was in fact rung.2 Counsel for defendant ask us to further hold that the complaint is insufficient because it affirmatively appears that plaintiff himself was guilty of contributory negligence. We cannot so hold. Con 2 Suppose the complaint had alleged generally negligence on the part of the defendant, without specifying what constituted negligence? Compare Clark v. Chicago, M. & St. P. Ry. Co., 28 Minn. 69 (1881), with King v. Wilmington & N. C. El. Ry. Co., 1 Penn. 452 (Del. 1898). See Clark, Code Pleading (1928) 206-208 (good discussion). Suppose the complaint had alleged negligence generally, and also stated specific facts which were insufficient in law to constitute negligence? See First National Bank v. St. Croix Boom Corp., 41 Minn. 141 (1889) (general allegation of ownership with specific allegations of facts insufficient to show ownership). Suppose the complaint had alleged negligence generally and also particular acts of negligence? See Omaha & R. V. Ry. Co. v. Wright, 49 Neb. 456 (1906). tributory negligence is a matter of defense.1 Hence the question is not whether plaintiff has sufficiently negatived his own negligence, but whether it conclusively appears, as a matter of law, from the facts stated in his complaint; that he was guilty of contributory negligence. While the admissions in the complaint may point very strongly to negligence on part of the plaintiff, yet we do not think they come up to the required test. The question may become a question of law after the evidence is all in, but it is not such on the pleadings. Order affirmed. TROTTER v. MUTUAL RESERVE FUND LIFE ASSOCIATION. SUPREME COURT, SOUTH DAKOTA. 1897. 9 South Dakota 596. ACTION to recover on a policy of life insurance. Defendants' demurrer to the complaint was overruled, and they appeal. Affirmed. [The plaintiffs, as the next of kin of the insured, brought this action against the insurance company and the administrator of the insured, alleging that the policy sued on was executed by the defendant company, that the other defendant, the administrator, released the defendant company, but that the release was procured by the fraud of the defendant company and of the administrator, and that the administrator refused to sue the defendant company. The defendant company demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.] * HANEY, J. . . . The release is a matter of defense, which should 1 There is a conflict of view on this question. See p. 251, n. 3, infra. In a considerable number of states, the plaintiff must allege and prove his freedom from contributory negligence. In such a jurisdiction, a declaration like that in the principal case would of course be demurrable. 2 In Chesapeake & Ohio Ry. Co. v. Swartz, 115 Va. 723 (1913), the court said (p. 729): "Assumption of risk and contributory negligence are matters of defense, and the fact that a plaintiff has not assumed the one or been guilty of the other need not be averred. It is nevertheless true that where a declaration shows that the plaintiff has assumed the risk, or been guilty of contributory negligence, it will be held båd on demurrer." Suppose that plaintiff alleges facts which show contributory negligence, but also alleges that he was in the exercise of due care? See Donohoe v. Lonsdale Co., 25 R. I. 187 (1903). Compare Town of Salem v. Goller, 76 Ind. 291 (1881). Similarly, a declaration which discloses on its face the defense of accord and satisfaction is demurrable. Paulson v. Ward County, 23 N. D. 601 (1912). 3 The allegation of fraud was: "That said release was executed by said administrator . . . without any authority whatever... and the same was procured by the misrepresentation of said association and misconduct of said administrator." 4 The statement of facts is abridged from the opinion. 5 A part of the opinion dealing with the jurisdiction of the court in which the action was brought is omitted. not have been mentioned in the complaint. The allegations relating thereto must be construed together, and, if stated in an answer, would certainly constitute no bar to plaintiffs' recovery. They do not defeat plaintiffs' right of action. They are inoperative and useless, and should be disregarded as surplusage.1 Phil. Code Pl. § 133. Without them we have a debt due the estate of $5000, upon which the administrator refuses to bring suit. We think the complaint states a cause of action, and that the order overruling the demurrer should be affirmed. It is so ordered.2 WALL v. CHESAPEAKE & OHIO RAILROAD CO. 200 Illinois 66. WILKIN, J. This suit was begun by plaintiff in error to recover damages for occasioning the death of her intestate, as it is alleged, by reason of the negligence of the defendant in error. To a second amended declaration containing twelve counts, filed on January 5, 1900, the court sustained a general demurrer, and plaintiff having elected to stand by her declaration as amended, and judgment for costs having been rendered against her, she appealed to the Appellate Court for the First District, where the judgment below was affirmed, and the case is brought to this court upon writ of error. The question is one of pleading. Plaintiff in error insists that the court erred in sustaining the demurrer. The first four counts of the declaration are alike, except the allegations as to the place where 1 Hence a plea of release by the defendant company would be sufficient unless the plaintiff set up the alleged fraud in his replication. See pp. 249–252, infra. Suppose the plaintiff had alleged the release but not the fraud in his complaint? Fuller, J., dissenting, thought that was the effect of the complaint in the principal case, apparently because the facts relied upon as constituting fraud were not sufficiently set forth. As to how fraud must be pleaded, see Pomeroy, Code Remedies (4th ed. 1904) 678-679. Compare Keller v. Johnson, 11 Ind. 337 (1858), with Laun v. Kipp, 155 Wis. 347 (1914). Would the same result have been reached in the principal case under the Federal Rules of Civil Procedure, Rule 9(b), p. 212, infra? 2 The dissenting opinion of Fuller, J., is omitted. In Brocklehurst & Potter Co. v. Marsch, 255 Mass. 3 (1916), the facts were similar to those in the principal case in that the plaintiff alleged a release and that it had been procured by fraud. Rugg, C. J., said (p. 6): “The allegations of fraud and misrepresentations of fact in obtaining the release of all claims and demands against the defendant, dated September 11, 1913, as set out at length in count two, doubtless were not necessary to a statement of the substantive facts out of which the plaintiff's claim arose. It may be assumed that these allegations were made in anticipation of and in answer to an expected defence of a release under seal. Although not a ground for demurrer, the pleading in the declaration in an action at law of a reply to an apprehended defence is not to be commended. Stephen on Pleading (Williston's ed.) 422 and cases cited." |