Johnson v. Howard

By the Court.

McMillan, Ch. J.

The particular portion of the agreement, upon which the defendant relies in support 'of his demurrer to the complaint, is the following clause :

“ The *stone shall be measured by the government officer in charge of the U. S. “ Measurement.” work, and shall be the same as may be allowed said party of the second part.”

The language of this clause of the agreement, set forth in the complaint, whether considered by itself, or in connection with the rest of the instrument, and the marginal notations by the parties opposite the several clauses of the contract, will admit of but one reasonable construction, which is that the stone shall be measured by the officer therein designated, and the measurement shall be the same as may be allowed said party of the second part.

*373 It is to be inferred from tbe agreement, that tbe stone to be delivered to tbe defendant under tbe contract were to be used by bim in fulfilling a contract with tbe United States government, and that, under tbe latter contract, tbe measurement of tbe stone was to be made by a government officer in charge of tbe public work. The parties to this contract intended, we think, to make tbe measurement of tbe officer, under that contract, the standard for determining tbe quantity of stone delivered under this one. Tbe parties have thus, by their mutual stipulation, determined upon tbe manner in which tbe quantity of stone delivered under the contract shall be ascertained, and have designated a third person as tbe person who shall, by his measurement, ascertain and determine such quantity. The stipulation thus made is binding upon both parties, and in order to maintain an action against tbe defendant, for a breach of tbe agreement in refusing to pay for tbe stone delivered, tbe plaintiff must allege that tbe stone delivered have been measured by tbe officer designated in tbe agreement, and that tbe quantity charged has been ascertained by such measurement, or else be must state facts which relieve bim from tbe necessity of alleging or proving these things. United States vs. Robeson, 9 Pet. 326 ; Butler vs. Tucker, 24 Wend. 447 ; Smith v. Briggs, 3 Den. 73 .

It is claimed by the plaintiff, that under sec. 92, chap. 66, Gen. Stat., it is not necessary to aver these facts, but that tbe general allegation in tbe complaint, “ that tbe plaintiff has duly performed all and singular tbe conditions to be performed ■ on bis part in pursuance of the contract,” is sufficient.

Tbe section of tbe statute relied on is as follows: “ In pleading tbe performance of conditions precedent in a contract, it shall not be necessary to state tbe facts showing such performance, but it may be stated generally that tbe party duly performed all tbe conditions on bis part; and if such *374 allegation is controverted, tbe party pleading is bound to establish on the trial the facts showing such performance.” Whatever may be the effect of this section, we are of opinion that it is not applicable to the facts of this case. By the terms of this agreement, the measurement of the stone is to be made, and the quantity delivered to be ascertained, not by the plaintiff, nor by the defendant, but by a third person, a stranger to the contract, who, by the stipulation is, pro hac vice, the agent of both parties Graham vs. Machado, 6 Duer, 514, 518 .

If it is necessary for the plaintiff to aver the measurement of the stone by the officer designated in the agreement, and the quantity delivered as determined by such measurement, or to allege facts which supersede the necessity of such aver-ments, then no sufficient allegation of delivery can be made without such averments. The allegation of delivery, contained in the complaint, is therefore bad, and, not being well pleaded, is not admitted by demurrer.

The order overruling the demurrer is reversed.