Henley v. Bush

[action for breach of special contract.] 1. Effect of-demurrer to plea.—Under section 2253 of the Code, which requires a specification of the grounds oí demurrer, a demurrer to a plea cannot be ■Visiteel upon the complaint. 2. Who is proper party plaintiff.—Section 2129 of the Code does not apply to a written contract, by which defendant acknowledged his-receipt of his own note, payable to a third person or order, and promised to return or account for it to the person from whom he received it; but such receipt having been endorsed in blank by the promisee to the payee of the note, and afterwards ■transferred by deliveryby the latter to plaintiff, the legal title vests in the plaintiff by virtue of section 1530 of the Code, and he may maintain an action on the contract in his own name. 3. Time of performance of contract.—When no time is specified for the performance of a written contract, by which defendant, acknowledging his receipt of his own note, payable to a third person, promised to return or account for it to the person from whom he received it, the legal presumption is, that the parties intended its performance within a reasonable time; and an action may be maintained for a broach after the lapse of six years.

Appeal from the Circuit Court of Pickens. Tried before the Hon. S. D. Hale. The amended complaint in this case was as follows: “Albert T. Henley r The plaintiff also claims of the vs. J defendant $1000, for the breach of an Edmund T. Bush. ( agreement in writing, entered into by him on the 20th November, 1847, in said county, by which he promised one John Robinson to return to him, orto account for, a note for |468 63, given by him to W. A. Scott, due on the 17th March, 1847; which note said ‘defendant received from said Robinson, on said 20th November, 1847, at- the time he made said written agreement; which written agreement the said John Robinson endorsed in blank to said W. A. Scott, who, before the commencement of this suit, delivered the same, with said blank endorsement thereon, to the plaintiff. The breach of said agreement complained of is, that said defendant has never returned said note to said John Robinson, nor -accounted to Mm for it; nor has he returned said note to said W. A. Scott, or accounted to him for it; nor has he returned said note to said plaintiff, or accounted to Mm for it.” To the amended complaint the defendant filed a plea, which was sworn to, in these words: “For answer,” &c., “the defendant says, that the said agreement in writing, in said amended complaint mentioned, is a receipt, made by said defendant on the 20th November, 1847, by which defendant acknowledged to have received from said Robinson his (defendant’s) note for $468 63, due March 17, 1847, payable to William A. Scott or order; by which receipt, defendant agreed to return said note to said Robinson, or to account to him for the same. And said defendant further saith, that before notice that said note had been transferred by said Scott to said Robinson, said •Scott was justly indebted to said defendant in the sum of $1000, for so* much money paid by the said defendant, •before that time, to and for the use of said Scott, and at his request; that when said note was presented to him by said Robinson, to-wit, on the day said receipt bears date, defendant informed said Robinson that he had a set-off’ against said note, and that said Scott was indebted to him as aforesaid; that said Robinson thereupon delivered •said note to him, and received said receipt from him; that .afterwards, to-wit, on the - day of-, 1848, said Robinson wrote his name across the back oí said receipt, ■and delivered said .receipt to said Scott; that thereupon ■said Scott .then and there paid said Robinson, and settled with him for the consideration for which he had before ■■then transferred said note to said Robinson ; that after-■wards, to-wit, on the- day of-, said Scott transferred said receipt to said plaintiff, by delivering the same to him, with the name of said Robinson so written across •the back thereof; and said defendant avers, that said Robinson did not assign said receipt to plaintiff, as he iu his .said complaint doth allege. Aud said defendant further saith, that he is ready and -willing, and .hereby offers,, to .set off against the claim of .said plaintiff, so much of said ••sum that said Scott .is indebted to him as aforesaid, as may be necessary to satisfy and discharge said note of defendant in said receipt named; and defendant brings-said note here into court, and avers that he is now, and ever has been, ready and willing to account for said note,, and was so ready before the action in this behalf was brought.” The plaintiff demurred, to this plea, and assigned the-following causes of demurrer: “1st, that said plea does not show a sufficient excuse for the breach complained of in the amended complaint; 2d, that said plea does not present a bar to the action alleged in said' amended complaint ; 3d, that said plea shows no sufficient excuse for the failure to return or account for the note mentioned in said amended complaint; 4th, that said plea is- a plea of set-off to an action sounding in damages merely; and, 5th, that said plea is double, in that it sets up a set-off as-a bar, and at the same time denies the assignment of the-receipt which is the foundation of the aetidn.”' On the-argument of this demurrer, the court held the amended-complaint insufficient, and visited the demurrer upon it;, and, on the plaintiff declining to amend, rendered judgment for the defendant. The errors now assigned are, the overruling of the-demurrer to the plea, the visiting of the demurrer to the-plea upon the complaint, and the rendition of judgment-for the defendant. The- complaint conforms substantially to the form given on. page 553 of the Code, and is sufficient. See, also, section 2227. It was not necessary to allege a request of the defendant to return or account for the note. The eon-tract imposed on him the duty of returning or accounting for the note, within a reasonable time, of his own accord.. 2 Parsons on Contracts, 173; Adams v. Adams, 26 Ala. 272; Calvert v. Marlow, 18 Ala. 67;. 1 Chitty’s Pleadings,. 329-30, and notes; 1 Saunders’ Pl.andEv. 130-31. But,, if it were necessary to allege a request, the omission to-do so could only be taken advantage of by special demurrer, (1 Chitty’s Pleadings, 331;) and the court will not •extend a demurrer to a plea to such a defect in the complaint.—1 Chitty’s Pleadings, 668 a, top. The receipt was assignable, both under the act of 1828, and under the Code; and having been endorsed by the ■obligee in blank, and delivered by a subsequent holder to the plaintiff, the latter had a right to sue upon it in his own name.—Clay’s Digest, 383, § 12; Code, § 1530. But, if the complaint were never so defective, the ■defects could not be reached in this indirect way. The defendant himself should have demurred, and assigned ■causes.—Code, §§ 2253, 2405. The plea is bad, for the reasons assigned in the demurrer.—Morrow v. Campbell, 7 Porter, 41; 1 Chitty’s Pleadings, 338, mar.; 2 Parsons on Contracts, 492-3; Code, § 2240; Brown v. Chambers, 12 Ala. 698; George v. •Cahaba, &c., 8 Ala. 234; Cole v. Justice, 8 Ala. 793; 1 Chitty’s Pleadings, 532, mar. 1. The complaint is bad, because it does not aver a sufficient breach of the agreement. The defendant was a mere bailee of the note, and was bound toy his contract to return it to Robinson, not within a ■reasonable time, but on request, or demand; and it was therefore necessary, in seeking to charge him for a bi’each, to aver a refusal to return the note on demand.—Story on Contracts, § 974; Bach v. Owen, 5 T. R. 216; 1 Chitty’s Pleadings, 330, 668, note; 28 Ala. 618; Story on Bailments, §§ 41,107. 2. The complaint is defective for the additional reason, that it shows no cause of action in the plaintiff. The .action should have been brought in the name of Scott, for the use of the plaintiff. The contract declared on, not being “for the payment of money,” does not fall within ■section 2129 of the Code; nor can the action be sustained under section 1530, because the complaint does not allege .an endorsement to the plaintiff'. 8. The complaint being bad, the demurrer to the plea was properly visited on it. The established rule of pleading, which requires a demurrer to be visited on the ffirst substantial fault in pleading, is not abrogated or affected by any provision of the Code. Section 2253 of the Code only confines the party demurring to the objections specified in his demurrer, but does not in any manner affect the other rule, which imposed the duty on the court, ex mero motu, of giving judgment on the demurrer against the party who was guilty of the first substantial defect. If the complaint is substantially defective, the defendant may either demur, move in arrest of judgment, or assign error. No injury is caused to the plaintiff' by allowing the demurrer to extend back to the complaint, nor is he deprived of the opportunity to amend. 4. The plea presented a good defense to the action. The defendant had a good set-off before the note was transferred to Robinson; and giving the receipt, under the circumstances, did not deprive him of it.