
    THOMPSON against GOULD.
    
      Supreme Court, First Department, First District ;
    
      Special Term,
    June, 1875.
    Pleading. —Demurrer.
    In an action for damages for refusal to receive and pay for certain gold contracted for by defendants, an allegation of damages' in the complaint, in the words “that by said refusal ” plaintiffs’ assignee “ was damaged ” so many dollars, without as matter of fact showing' how that, or any damage arises, is insufficient to give defendants notice of the question to be tried, and a demurrer to such complaint for want of sufficient facts to constitute a cause of action is good.
    Facts must be set forth in the complaint from which the court can infer that the plaintiff has sustained damage. A mere conclusion asserting damage is not enough.
    A complaint in an action by an assignee of a claim for non-performance of a gold contract, alleging that “the defendants have at all times refused and neglected to receive the gold, or to pay the plaintiff" therefor, is insufficient; and a demurrer on the ground of want of facts sufficient to constitute a cause of action will be sustained.
    Robert H. Thompson brought this action against Jay Gould and others, alleging in his complaint that one Harrison on September 24, 1869, at the city of New York, entered into a contract of sale with the defendants, by which Harrison was to sell and deliver on the next day, September 25, through the New York Gold Exchange Bank, twenty-one hundred thousand dollars ($2,100,000), gold coin of the United States, to one Albert Speyers, and the defendants agreed that Speyers should receive this gold, and should, at the same time, pay through the same bank to Harrison the sum of thirty-three hundred and sixty thousand dollars ($3,360,000) in currency.
    
      That at the same time and place Harrison was ready and willing to deliver twenty-one hundred thousand dollars ($2,100,000) gold coin, “in manner as, aforesaid, and duly tendered payment thereof at said time, and in said manner.”
    That Speyers and the defendants have at all times refused and neglected to receive the gold, or to pay to the plaintiff the currency aforesaid.
    That by said refusal Harrison was damaged five hundred and sixty-seven thousand dollars ($567,000).
    That on October 19, 1874, Harrison assigned his claim to the plaintiff.
    The defendants demurred to this complaint, for want of facts sufficient to constitute a cause of action,
    Sullivan, Kobbe & Fowler, plaintiffs’ attorneys ; Algernon S. Sullivan, of counsel.
    
      Shearman & Sterling, defendants’ attorneys ; John W. Sterling, of counsel:
    I. There is no averment of any tender or offer of performance made to Speyers or to the defendants. It was alleged that Harrison was ready to pay, and tendered payment, but it is not said to whom. The only words which it can be claimed amount to an intimation of the person to whom the tender was made, are that “Harrison tendered payment in said manner” which are insufficient to identify the person to whom the tender was made The person to whom the tender is made is no part of the manner of-tender. “Manner” refers to something in the mode of tender itself, the form, the ceremony, the attendant circumstances of the act, and, in this case, refers only to the place, and other attendant circumstances. All, therefore, that is pleaded in this case is, that Harrison tendered payment on September 25, 1869, at the city of New York, which, though proper and necessary, does not obviate the necessity of an averment that he made the tender of offer of performance to the defendants, or their authorized agents (Beecher v. Conradt, 13 N. Y., 108; Dunham v. Pettee, 8 Id., 508 ; Lester v. Jewett, 11 Id., 453).
    II. The complaint is also defective in omitting any averment of a demand by Harrison for payment of the currency price. The demand, as well as the refusal, is necessary in order to constitute a cause of action. The plaintiff’s assignor, certainly, was not injured by the failure of the defendants to take his gold coin. This he was bound to offer, but if the defendants chose to pay him the price, leaving the gold coin on his hands, he certainly could not complain.
    III. There is no allegation of refusal to pay the price which is sufficient to excuse a demand as on the part of the plaintiff’s assignor. All that is said on this point is the general allegation that the defendants “wholly refused and neglected, &c. ” to receive the coin or pay the price to the plaintiff. No time ia stated at which this refusal was made, and therefore it does not come within the cases from which it might be argued that a refusal to perform, addressed to the plaintiff’s assignor in advance of the time fixed for the performance, would excuse him from making any demand. It does not appear when this refusal was made, and this defect, not in a mere matter of form as in the ordinary instances of omission to designate a time, goes to the very merits of the action.
    IY. It is not pretended that the defendants ever refused to pay Harrison, the plaintiff’s assignor. The averment is that they refused to pay the currency price to the plaintiff. It is not alleged that this refusal occurred after the assignment to the plaintiff; on the contrary, there is no.averment of any tender or demand by the plaintiff, and the allegations of the complaint clearly show that there was a tender by Harrison, and a refusal to pay to "the plaintiff at a time when Harrison alone, and not the plaintiff, was the party in interest. It has been adjudged that a complaint which only alleges a refusal to pay without expressly averring that this refusal was addressed to the party entitled to payment is bad (Travel v. Halsted, 23 Wend,, 66), the court there showing that in the absence of a certain averment, the refusal being one addressed to a neighbor in no way connected with the interested party, and of which he never heard. In this case, however, it affirmatively appears that the refusal was made to a person having no right or authority to receive the price, and it was, therefore, perfectly justifiable.
    Y. The complaint is bad because it alleges no facts from which the court can infer as matter of law, that the plaintiff or his assignor has suffered damage; ■such as, for example, that the price of gold fell, or that the plaintiff could not now or at any time, have ■obtained as large or even a larger price than that for which he agreed to sell the gold coin to the defendants. (1) Such facts are essential to a good complaint, and they are not supplied by the formal statement “that by said refusal, said Harrison was damaged, &c.” (Gould v. Allen, 1 Wend., 182; Rider v. Pond, 28 Barb., 447), which is a conclusion of law without a single averment of fact to sustain it, and comes under the new English system of pleading, which is more liberal than our own, where a similar averment has been held altogether bad (Smith v. Hayes, Irish Rep. 1 C. L., 333, 335).
   Donohue, J.

The complaint is this case is for damages for non-performance of a gold contract. The defendants demur. The most important ground of demurrer is that no sufficient allegation of damage is set out in the complaint to give the defendants notice-of what they are to try. Assuming that the complaint is correct in all other particulars and allegations, it amounts to this: the plaintiff says you, the defendants, on a certain day bought certain gold of me, which I have been and am now ready to deliver, and you will not pay for it, and I am damaged to the amount of so much by that refusal, without as matter of fact showing how that or any damage arises. Its seems to me on the authority of Grould v. Allen (1 Wend., 182), and Rider v. Pond (28 Barb., 447), theaverment is not enough. Had this action been for the purchase price of the gold, the mere statement of' the contract, tender, and refusal would have sustained an action for that price; but the action is not for that price; it is for damage on the defendants’ failure to keep their contract, and there does not appear, either by express averment of fact, or any inference the court can legally draw, that the plaintiff has sustained damage; mere conclusion asserting damage is not enough.

In regard to the averment supposed to set out the-refusal of defendants on which the action is founded,, I think the complaint equally defective ; the mere refusal to take the gold could not damage the plaintiff' or Harrison; it was only the refusal to pay for it which would work that result, and that refusal is alleged to be a refusal to pay the plaintiff; it does not appear that the assignor Harrison has not been paid. How Harrison could be damaged by a refusal to pay plaintiff, does not appear. '

For these reasons it seems to me the demurrer is well taken, and there, must be judgment for defendants, with the usual leave to plaintiff to amend on payment, of costs.  