possesses a right of action, it is in general necessary to aver performance of the Consideration on his part, which Allegation being material and Traversable, must be made with proper certainty of time and place, etc. This obligation of averring performance imposes upon the plaintiff the necessity of stating the Consideration with a greater degree of certainty and minuteness than in the case of Executed Considerations; for the Court would otherwise be unable to judge whether the performance averred in the Declaration were suffIcient.” “
Concurrent conditions occur in the case of mutual promises which are to be concurrently performed, as in promises to marry, to sell and deliver goods, and to receive and pay for them, etc. In these cases the plaintiff must always allege a performance or an offer to perform on his part.43 A mere Allega
44- 1 Chitty, On Pleading, c. IV, Of the Praecipe and
Russell v. Slade. 12 Coan. 455 (1838); Massachusetts: Read V. Smith, I Allen (Mass.) 519 (1861);
New York: Clover v. Tuck, 24 \Vend. (N.Y.) 153
Thus, in an Action for Wagcs agreed to be paid to the plaintiff ia Consideration that he would proceed on a certain voyage, it was held necessary to state the particular voyage. White v. Wilson, 2 lbs. & P. 116, 126 Eng.IIep. 1188 (1809); Ward v. Harris, 2 Sos. & P. 265, 126 Eng.Rep. 1273 (1800).
~ English: Morton v. Lamb, 7 T.R. 125, 101 Eng. Rep. 890 (1797); flhinois: flough v. Rawson, 17 III. 588 (1850); Metz v. Albrecht, 52 111. 491 (1800); Massnehusette: Stephenson v. Cady, 117 Mass, 6 (1575).
In an Action for Breach of a Contract by which the plaintiff had agreed to buy a certain quantity of corn of the defendant at a certain price, and the defeadant had promised to deliver the corn within one month, the plaintiff merely alleged that he had always been ready and willing to receive the corn, but that it had not been delivered within the month. The Court held that readiness to receive was not a sufllcient performance of his obligation by the plaintiff; that payment of the price was intended to be concurrent with delivery of the corn. As the jdaintlff did not allege that, during the time In which delivery might have been made, he had been teady to pay the price, there was nothing, as be had shaped his ease, to show that he bad riot himLeif broken the Contract and discharged the de
tion of readiness and willingness to perform may not be sufficient.4°
If any error is made in describing the Consideration which forms the basis of the Contract, this may be a fatal Variance, as the whole Contract must be proved as stated, and the plaintiff will fail at the Trial unless permitted to Amend his Declaration. It is necessary that the whole of the Consideration should in general be stated and that it be proved to the extent alleged.47 DECLARATIONIN SPECIAL ASSUMPSIT— ESSENTIAL ALLEGATIONS: (4) TUE
PERFORMANCE BY PLAINTIFF OF ALL
168. The Declaration must allege the Performance or Fulfillment of all Conditions Precedent to the defendant’s duty to perform his Promise. it must allege Due Performance by the plaintiff, or aver a sufficient Excuse for Nonperformanee.Where Reciprocal Promises involve Mutual Conditions, to be performed at the same time, tIre plaintiff must aver Performanee of his part of the Contract, or a readiness and an offer to perform. A Condition which merely affords a Defense or Excuse for Failure to Perform a Contract is Matter of Defense, which need not be negatived in the Declaration. The border line as to what Conditions should be Negatived in the Declaration and what should be set up as a Defense is doubtful and uncertain. WHERE the Consideration for the defendant’s Promise was past or executed when the Promise was made; or where, though the Contract consisted of mutual promises, the performance of his Promise by the defendant was not dependent or conditional upon performance by the plaintiff; nor up-oh any other subsequent event, as the act of some third person, or the lapse of a certain
fondant by non-readiness to pay. Morton v. Lamb, 7 P.R. 125, 101 Eng.Rep. 890 (1797).
46. Kane v. flooa, 13 rkk. (Mass.) 281 (1832).
47. James v. Adams, 16 W.Va. 245 (1880).
The entire consideration must be alleged, such as all the property sold, In each count Stone v. WhIte, 8 Cray (Mass,) 589 (1557).
time, or upon notice or demand—the Declaration, after alleging the Consideration and the Promise, should proceed at once to allege the Breach.43
When, however, the Consideration for the defendant’s promise was a Promise by the plaintiff which was required to be performed as a Condition Precedent to Performance by the defendant,40 or if the defendant was not required to perform before the happening of some subsequent event,5° as the act of
4S, If the day appointed in the Contract for the doing of any act by the defendant falls before the day when the act constituting the Consideration is to be done by the plaintiff, or where for any other reason the performance by the defendant does not depend npon Performance by the plaintiff, Performance need not be alleged. English Boone v. Lyre, 1 Rift. 273, note, 126 Eng.Rep. 160 (1789) Alabama: NeGehee v. Hill, 4 Port, (Ala) 170, 29 Am. Dee. 277 (1830); Kentucky: Morford v. Mastin, C P aMon. (Ky.) 609, 17 Am,Dee. 108 (1828) MaIne:
Norris v. School P1st. No, I in Windsor, 12 Mo. 293, 28 Am.Dce. 182 (1528); Massachusetts: Kane v. Rood, 13 Pick, (Mass.) 281 (1832); New York: Bennet v. Pixlcy’s Ex’rs. 7 Johns. (NY,) 249 (1810); Cunningham v, Merrell, 10 Johns. (NY.) 204, C Am. Dee, 332 (1813); Rebb v. Montgomery, 20 Johns. (N.Y.) 15 (1822); Pepper v. Ilaiglit, 20 Barb. (N.Y.) 429 (1854); Pennsylvania: Obermyca v. Niche’sa, 6 Bin. (Pa.) 159, 6 Am.Dec. 430 (1813).
49- California: Naftzger v. Gregg, 3 Cal.Unrep. 520,
31 P. 612 (1892); Connecticut: Loan v. Atwater, 4 Conn. 3, 10 Am.Dee. 91 (1821); Illinois: People en tel. Chicago & I, II. Co. v. Glann, 70 Ill, 232 (1873); Continental Ins. Co. -v. Rogers, 110 HI. 474, 10 N.E. 242, 50 Am.Rep- 810 (1887); Kentucky: Harrison v. Taylor, 3 A. IC. Marsh. (Ky.) 108 (1820); Massachusetts; Couch v. Ingersoll, 2 Pick. (Mass.) 292 (1824); New York: Mclntire v. Clark, 7 Wend. (N.’!.) 330 (1831); Lester v. Jewett, 11 N.Y. 453 (1854); Pennsylvania: Zerger V. SailCI’, C Bin. (Pa,) 24 (1813); South carolina: Salmon v. Jenkins, 4 MeCord (S.C.) 288 (1827); Tennessee: S,nith’s Hefl’s v. Christmas, 7 Yerg. (Penn.) 565 (1835); VirgInia:
Goodwin v. Lynn, 4 Wash.C.C. 714, Fed.Cas.No.5,553 (1827).
A Declaration on a promise to pay money in consideration of forbearance, must aver such forbearance. Comm, Dig, ‘Pleader”, C. 22 (London, 1822).
W. Thus, in an Action on a Promise to pay money, when collected, collection of the money is a condititsa precedent, and hence must be averred. Dodge
a third person, the lapse of a certain time,5’ or notice,52 or a request or demand by the plaintiff,53 the Declaration must allege the Fulfillment of such Condition Precedent, or, in case of Nonperformance of a Condition Precedent by the plaintiff, must show an Excuse therefor. Excuse for the Nonperformance of a Condition cannot as a general rule be shown under an Allegation of Due Performance.14
v. Coddington, 3 JohIls. (NY.) 140 (1808). Cf. Withams v. Smith, 3 Scans. (lii.) 52-1 (1842).
51. WorCey v. Wood, 6 TB. 710, 101 Ez’g.Ilep, 7&i (1706).
52. Illinois: Independent Order of Mut, Aid v, Paine, 17 1ll.App, 572 (1885); Massachusetts Slut, Life Ins. Co. v. Kellogg, 82 111, 614 (1870).
In order to sustain an action on a life insurance poiicy, the Declaration must show the Staking of the Policy, the material terms of: the Co,itraet, the Performanee of nil Conditions Precedent, such as no— tiee and proof of loss, the happening ci the contingency in which the defendant becomes Iial,le to pay, anti the Failure to Pay. Massachusetts Mut. Life Ins, Co. v. Kellogg, 82 Ill, 614 (1876).
an- Whenever it is essential to the Cause of Action that the plointifi’ should have actunlly formally jo-quested or Demanded Perforinnueo by the defendant, such Demand or request must he aven’ed. Bach v, Owen, S TB. 409, 101 Eng.Rep, 229 (1793); 1 Chitty, On Pleading. c, IV, Of the Praocipe arid Declaration 302 (Springfield 3833); Coniyu. Dig, “Pleader,” C- 09 (London, 1822).
Such is the case in Assuinpsit on n Nete. or otherwise for money payable on demand, or a certain time after demand. English: Thorpe & Uxor v. Booth, 1 Ryan & SI. 388, 171 EugItep. 1039 (1820); Carter
V. Ring, 3 Camp, 459, 170 Eng.itep. 1445 (1813);
Massachusetts: Greenwood v, Curtis, 6 Mnss. 358, 4 Am,Dec. 145 (1810); New York: Lobdeli v. Hopkins, 5 Cow, (N.Y.) 516 (1826); or for failure to deliver goods, or perform any other act, on dcnjaud,
English: Bach v, Owen, 5 P.R. 400, 101 EngJtep. 229 (1703) Illinois: Icoulds v- Watson, 116 III’. App, 130 (10011; New York: Ernst v Battle, I Johns. (N.Y.) 327 (1807).
‘$4. Thus, in declaring on a Promise to pay a sun. of money in Consideration that the plaintiff would execute a Release or Conveyance, the Declaration must allege that the Release or Conveyance was executed, or tendered anti refused. English: Collins v. Gibbs, 2 Burr. 509, 9? Eng.Rep. 623 (1759); New ‘York; Parker v. Parmeie, 20 Johns (N.Y,) 130’, 11 Am.Dee. 253 (1823),
ACTION OF SPECIAL ASSIJMPSIT
In case of Reciprocal Promises, constituting Mutual Conditions to be performed at the same time, the plaintiff must aver Performance by him, or a readiness and Offer to Perform, or an Excuse for not Offering to Perform.°5
The Averment of Performance will, of course, be unnecessary where the plaintiff has been prevented, or in some manner discharged, by the defendant, from carrying out his port of the Contract. Maine:
Miller v. Whittier, 32 Me. 203 (1850); Massachusetts: Newcemb s’ Brackett, 16 Mass. 161 (1819);
Pennsylvania: Shaw v. Lewistown & K. Turnpike Co., 2 Pen. & W. (Pa.) 454 (1833); Tennessee: Bryan
A Spurgin, 5 Sneed (Penn.) 081 (1558).
In such a case, the plaintiff must state the Excuse for his Nonperformanee. In so doing, the particular Circumstances constituting the Matter of Excuse, including the plaintiff’s readiness, must be alleged, as it is aot sufficient to net forth merely the fact that he was so prevented or discharged from completing his obligation. Indiana: Borne Ins. Co. of New York v. Duke, 43 md. 418 (1873);
Massachusetts: Baker v. Fuller, 21 Pick. (Mass.) 318 (1838); New York: Clarke v. Crandall, 27 Barb. (N.Y.) 73 (1858).
Matter of Excuse must always be alleged where there has been a Failure of Performance of a Condition Precedent. Illinois: Expanded Metal Fire-proofing Co. v. Boyce, 233 Ill. 284, 84 N.E. 275 (1908); Walsh v. North American Cold Storage Co., 260 Ill. 322, 103 N.E. 185 (1913).
An Exception exists in Actions on Ellis and Notes and oa Insurance Policies. Florida: Spann v. Baltzell, I Fla. 301, 46 Am.Dec. 346 (1847); Illinois: Tobey ‘v. Berly, 20 Ill. 420 (1801); German Fire Ins. Co. tf Peoria v. Grunert, 112 Ill. 68, 1 N.E. 113 (1884).
55. Connecticut: Smiths’. Lewis, 26 Conn. 110 (1857);
Illinois: Allen v. Jiartfield, 76 III. 358 (1875); Clark v. Weis, 87 III. 438, 29 Am.Rep. 60 (1877); Massachusetts: Tinney v. Ashley, 15 Pick. (Mass.) 552, 26 Am.Dee. 620 (1834); Adams v. O’Connor, 100 Mass. 515, 1 Am.Rep. 137 (1868); New York: Leg-1ev v. aewett, 11 N.Y. 453 (1828); Ohio: Bodgson v. Barrett, 33 Ohio St. 63, 31 Am.Bep. 527 (1877);
Pennsylvania: Henderson v. Lauck, 21 Pa. 350 (1853); Federal: Bank of Columbia v. Hagner, 1 Pet. 455, 7 LEd. 219 (1828).
Actual performance need not be alleged. Whitall V. Morse, 5 Serg. & B. (Pa.) 357 (1819).
In an Action for Nondelivery of goods sold, or to recover the price of goods sold, where delivery 9t the goods and payment of the price were to be concur~ tent, the Declaration must allege a readiness on the part of the plaintiff, and an offer to perform his part of the agreement English: Morton v. Lamb,
In averring the Excuse for Nonperformance by the plaintiff of a Condition Precedent, the particular circumstances which constitute the EXCUSe must be stated.~
It is sufficient to set out the Performance of a Condition Precedent in the Language of the Condition,67 provided the Condition appears thereby to have been performed according to the intent of the parties, but not otherwise. It is not sufficient to pursue the words if the intent be not also performed. Performance according to the intent must be shown. An exact Performance must be stated.58 All Allegation of performance of all Conditions Precedent in general terms is not ordinarily sufficient.59 7 TB. 125, 101 Eng.Rep. 890 (1797); Illinois: Rough v. Rawson, 17 III, 588 (1856); Metz v. Alhrecht, 52 Ill. 401 (1869); Osgood v. Skinner, 211 Dl. 229, 71 N.E. 800 (1004). 8cc, also, 2 Williston, Contracts, c. XXVI, Nonperformance of a Counter-Promise as an Eicuse for Breach of Promise, § 533, What Amounts to an Offer to Perform (New York, 1920),
‘$0. Coppin v. Rurnard, 2 Wms.$nnnd. 120, 132, 55 Eng.Rep. 851, 853 (1670).
57 Smith’s Admr V. Lloyd’s Ex’r, 16 Crat. (Va.) 205 (1828).
53. 1 Chitty, On Pleading, e. IV, Of the Praecipe and
At Common Law, the General Averment of Performanee of Conditions Precedent was bad in form, for net alleging with particularity the Facts of Performance. By Statutes, in many states one may aver the Performance of Conditions Precedent Generally. 4 Encyclopedia of Pleading & Practice, 632, 633 (Northport, 1896).
In the absence of a statute, a General Allegation of Performance of Conditions Precedent by the plainti~ will probably be sustained after Verdict, but prior thereto Is ground of Demurrer. Indiana: Kor~ biy -v. Loomis, 172 md. 852, 88 Nfl 608, 139 Am.St. Rep. 379, 19 Ann.Cas. 904 (1909); Massachusetts:
Newton Rubber Works -v. Graham, 171 Mass. 352, 50
330 OFFENSIVE PLEADINGS Ch. 16
ACTION OF SPECIAL ASSUMPSIT
The omission of the Averment of Performance of a Condition Precedent, or of an Excuse for the Nonperformance, is fatal on Demurrer, or on objection after Judgment by Default; 60 but after a Verdict the omission may in some cases be Aided by the Common-Law intendment that everything may be presumed to have been proved which was necessary to sustain the action; for a Verdict will cure a case defectively stated.°’
Conditions Subsequent and Provisos
THE plaintiff need not refer to Conditions Subsequent, but may leave it to the defendant to plead them, if he so desires, by way of Defense.62 The mere Language of a Condition, however, will not indicate with certainty whether it is Precedent or Subsequent. In fact, Professor Williston declares: “What are generally called Conditions Subsequent in Contracts are so called with little propriety. They are in substance Conditions Precedent to the Vesting of Liability and are subsequent only in Form.” 63 “Insurance policies always expressly except certain
N.E. 547 (1898). See, also, Note, Contracts—Pleading—Alleging Performance of Conditions Precedent, 5 Minn.L.Rev. 147 (1921).
Conditions Subsequellt, Provisos, or other Irlatter in Defeasanee of a right of action, are Matters of Defense to be pleaded and proved by the defendant. Wilmington & Raleigh B. It. Co. v. Robeson, 27 NC. 391 (1845).
6~. 2 Williston, Contracts, c. XXIII, Express Condi. thins, 667, Conditions Subsequent (New York, 19201.
risks. The burden of alleging and proving that the loss was caused by one of these excepted matters is generally put on the defendant insurer, though this is often not easy to justify.” “
If the defendant’s Covenant or Promise be subject to Exceptions which qualify his Liability, the Declaration must notice the Exception, or there will be a fatal mis-statement.°5~ The cases draw a distinction between an Exception and a Proviso. An exception in the~ body of the Covenant or Promise must be set out. “But if A covenants to convey to B a certain farm, with a separate Proviso, that on A’s performing a certain act, he shall not be bound to convey one particular close,
64. Corbin, Cases on Contracts, 700 (St. Paul, 1921); Ames, A Selection of Cases on Pleading, e. XIV, Pleadings in Particular Actions, § 1, Specialty and Simple Contracts, 302, 306 (Cambridge, 1005);
‘It is ~vell settled that in actions upon insurance policies containing a stipulation that the policy shall be void if any of the representations of the insured are untrue, the defendant must allege and prove the untruth of the particular representation claimed to be untrue.” Ames, A Selection of Cases on Pleading, e. XIV, Pleadings in Particular Actions, § 1, Specialty and Simple Contracts, 304, note (Cambridge, 1005).
65. English: Vavasour v. Ormred, 6 Barn. & Cress.
430, 108 Eng.Itep. 500 (1827); Browne v. Knill, 2 Brod. & Bitig. 395, 129 Eng.Rop. 1019 (1521); Maryland: Ferguson v. Cnppeau, 6 Bar. & J. (Md.) 394 (1825).
A Bill of Lading, containing Exceptions for loss by “the dangers of the seas,” has been held to be a qualified undertaking and not a Proviso, and does not support an Allegation of a General Undertahing to transport the goods safely and deliver them. Brklge v. Austin, 4 Mass. 115 (1805).
The precise terms of the Contract of Shipment need not be set out, where the action is based on Breach of the Obligation of a common carrier in Case. Atlanta. & W. P. B. Co. v. Jacobs’ Pharmacy Co., 135 Ga. 113, 68 SE. 1030 (1910). See, also, Ames, A Selection of Cases on Pleading, c. XIV, Pleadings In Particular Actions, § 1, Specialty and Simple Contracts, 295 (Cambridge, 1905).
DECLARATION EN SPECIAL ASSUMPSIT—
ESSENTIAL ALLEGATIONS: (5) THE
BREACU 169. The Breach, in Special Assumpsit, Is the violation of his Contract by the defendant. Being an essential ground of the action, the Declaration must state it expressly and with certainty, but less particularity is requisite when the facts constituting it lie more properly within the knowledge of the defendant. AS the Breach of a Contract is obviously an essential part of the cause of action, it cannot be omitted from the Declaration.67 The manner of its Allegation must necessarily be governed by the nature of the Promise or stipulation broken.65 It should be Assigned in the words of the Contract, either negatively or affirmatively, or in words which are co-extensive with its import and effect.°9 Though the express words of the
CS. Gould, A Treatise on the Principles of Pleading,
Div. Ifl, The Declaration, c. 1, General Rules,
365 (6th ed. by Will, Albany, 1009); Fike V. Stratton,
174 Ala. 541, 56 So. 029 (1911); Note, “Pleading an,l
The words of the Contract need not necessarily be used; but it is necessary that the words employed shall show clearly that the Contract has been broIcon. Thus, in Debt on a Bond, conditioned for the payment of an annual sum for “the wile” of the obligee, a Breach assigned in Nonpayment to the
“obligee”, is insufflèient. English: Lunn v, Payne, O Taunt. 140, 128 Eng.Rep. 986 (1815); Kentucky:
Moxley’s Adm’rs v. Mox)ey, 2 Mete. (Ky.) 309 (1859); New Hampshire: Atlantic Met. Fire Ins. Co. v. Young, 38 N.H. 451, 75 Am.Dec. 200 (1859).
If the Breach assigned varies from the sense and Substance of the Contract, and is either more innited or larger than the Promise, it will be insntTh dent. Thus, in the case of a Promise to repair a fence, except on the west side thereof, a Broach thnt the defendant did not repair the fence, without showing that the want of repair ~vaS ia other parts of the fence than on the west, is bad on Demurrer, though it may be Aided by Verdict. I Chitty, On Plending, c. TV, Of the Praecipe and Declaration, 367 (Springfield, 1833); Comyn. Dig. “l’lendei-”, C.
47 (London, 1522). It is unsafe to unnecessarily narrow the Breach. Thus, where the Breach assigned was that the defendant had not used a farm in a husband1i1~e manner, ‘~p~ on the contrary had committed waste,” it was l]eld that the plaintiff could not give evidence of the tiefeudnnts using the farm in an unln,sbandlihe manner, if such misconduct did not amount to waste, though on the former words of the assigninent such evidence would have been admissible. 1 Chitty, On Pleading, c. IV, Of the Praocipe and Declaration, 368 (Springfield, 1833); Harris v. Mantle, 3 Term.fl. 307, 100 Eng.Rep. 591 (1789).
The safest course is to state the Breach flrst in the words of the Contract, and then to superadd that the defendant, disregarding, did so and so, showing any Particular Breaches not narrowing or prejudicing the previous general assigliment, so that the plaintiff retains the advantage of both; and no inconvenience can result from laying the Breach as extonsively as the Contract, for the plaintiff may recover nithough he only prove a part of the Breach as laid. I Cbitty, Oa Pleading, c. IV, Of the Declaration, 346 (Springfield, 1876); Barnard v. Oaths, 5 Taunt. 27, 125 Eng.Rep. 595 (1813).
332 OFFENSIVE PLEADINGS
Contract will generally be sufficient, they may not always be so. The assignment must not be too general; it must show the subject-matter bf complaint.~° “And therefore
parcel of the farm; B in Declaring on the Covenant, need not take notice of the Proviso.” 06 For it is in the nature of a Condition Subsequent, of whjch A may avail himself in Defense, if he has performed the act mentioned in the Proviso, A distinction analogous to that stated prevails in declaring upon penal statutes. Where an Exception is incorporated with the Enacting Clause of a Statute, he who pleads the clause ought to plead the Exception. But it is otherwise of a Proviso; that is a Subsequent and Independent Clause, which provides that in certain cases the statute shall not operate.
535 (1562); New Yoi-k: ~uliand
(N.Y.) 477 (1544); Federal:
Blatehf. 346, Fed.Cas.No.17,040
v. Bui’gott, 11 Johns. Wilcox ‘c. Cohn, 5 (1806).
C- Maryland: I-Carthnus v. Owings, 2 Gill. & 3. (Md.)
441 (1830); Missouri: Gardner v. Armstrong, 31 Mo.
70. English: Wara v, Bieliford, 7 Price 550, 146 Erg.
Rep, 1055 (1819); Baxter v. Jackson, 1 SM. 178, 52