
    Alice Yourt Spear vs. John W. Downing and others, executors, &c. of Benjamin Marshall, deceased.
    Substantial and radical defects in a complaint may be reached under the general allegation, in a demurrer, that the complaint does not state facts sufficient to constitute a cause of action.
    Under section 162 of the code, relative to actions upon “ an instrument for the payment of money only,” the instrument set forth in the complaint must be an instrument on its face apparently valid ; certainly one not clearly void.
    
    In an action upon the following instrument, “ I hereby agree to pay Miss A. Y. twenty dollars per month during her natural life, for her attention to my son J. S. M.,” it was held that, to make the signer liable, the complaint should aver that the “ attention” was bestowed, either in pursuance of a request previously made, or that it was in its nature beneficial to the party promising, so as to operate as a reasonable and probable consideration for the promise. Peckham, J. dissented.
    Courts ought not to extend the application of section 162 of the code beyond the probable intent of the legislature; or to give a party the benefit of a cause of action by an indirect mode of averment, when he would not have had it if he had put his allegations in proper form, and in express terms. Per Hogeboom, J.
    Where a consideration is not implied, or a request is essential to the defendant’s liability, it is of the gist of the action, and must be specially averred.
    When the question of the defendant’s liability turns upon the inquiry for whom, or at whose request the services were rendered, the absence of any allegation in the complaint, on that subject, is not aided or cured by the rule that where a contract is susceptible of a two-fold construction, one of which will make it valid and the other void, the legal presumption is in favor of the validity of the contract. Peckham, J. dissented.
    The rule of construing pleadings, under the code—that they are to be construed most favorably to the pleader —.though admissible on questions of form, is not applicable in regard to the fundamental requisites of a cause of action.
    
      Prindle v. Garuthers (15 2f. Y. Rep. 425) considered, and distinguished from the present case.
    APPEAL by the defendants from an order of the special term, overruling a demurrer to the complaint. The complaint alleges that the defendants’ testator, in consideration of the services therein mentioned, made and delivered to the plaintiff, then a single woman, by the name and description of Miss Alice Tourt, his promissory note or instrument in writing, in the words and figures following, to wit:
    “ Troy, August 4fh, 1846.
    • I hereby agree to pay Miss Alice Tourt, twenty dollars per month during her natural life, for her attention to my son John Stanton Marshall.
    Benjamin Marshall.”
    The complaint then proceeds to allege the death of Benjamin Marshall on the 2d of December, 1858; the grant of letters testamentary to the defendants; that at the time of his death sixteen monthly payments, agreed to be made by the instrument aforesaid, remained due and unpaid, amounting to the sum of $320; that since his decease twenty-one monthly payments, up to the first of September, 1860, have become due and payable to said plaintiff, amounting to the sum of $420; no part of which has been paid, though duly demanded ; and demands judgment for both said sums of $320 and $420, with interest on the monthly installments, together with the costs of the action.
    The defendants demurred to the complaint, on the ground that the same does not state facts sufficient to constitute a cause of action, and specified the following defects: 1. That the complaint contains no allegation of the performance or bestowment of attention. 2. Bor of the nature, extent or value of such attention, n*or that it was of any value.
    
      J. A. Millard, for the plaintiff, (respondent.)
    
      Charles R. Ingalls, for the defendants, (appellants.)
   Hogeboom, J.

I think the complaint is not insufficient for either of the specific defects named in the demurrer. I think the fair inference is that the services or attentions had been already rendered. The omission to state their nature, extent and value, if necessary to be stated, was a defect to be reached by motion under section 160 of the code, and not by demurrer.

But I think substantial and radical defects in the complaint may still be reached under the general allegation that the complaint does not state facts sufficient to constitute a cause of action. (Code, § 144. Durkee v. Saratoga Rail Road Co., 4 How. Rep. 226. White v. Brown, 14 id. 282. Haire v. Baker, 1 Seld. 359. Connecticut Bank v. Smith, 17 How. 487.)

This brings us to the question principally argued before us, to wit, whether the complaint, on its face, contains the elements of a good cause of action. This depends mainly upon the construction to be given to section 162 of the code, which provides that “in an action or defense founded upon an instrument for the payment of money only, it shall be sufficient for a party to give a copy of the instrument, and to state that there is due him, thereon, from the adverse party, a specified sum which he claims.” The instrument in question comes within the literal description of the kind of instruments mentioned in this section; for it is an instrument for the payment of ■ money only. But obviously something more is necessary. It would seem that it should be an instrument on its face apparently valid : certainly one not clearly void, for then the instrument would nullify itself.

This instrument is not a promissory note, because it was not payable at all events. The death of Alice Tourt, within a month after the date of the instrument, would have defeated any recovery. (Prindie v. Caruthers, 15 N. Y. Rep. 430.) In the language of the court of appeals, “it is necessary, therefore, that the promise should from the complaint appear to have been made upon consideration.” (Id. p. 430.)

There is no allegation of consideration, in the complaint, independent of that, if any, which appears upon the face of the instrument. That consideration, as alleged, is “ for her attention (paid or given) to my son John Stanton Marshall.”

To make the defendants liable, this attention must have been bestowed, either in pursuance of a request previously made, or must have been in its nature beneficial to the party promising, so as to operate as a reasonable and probable consideration for the promise. (Ingraham v. Gilbert, 20 Barb. 152. Ehle v. Judson, 24 Wend. 97, 98. Goulding v. Davidson, 28 Barb. 438. Wilson v. Baptist Education Society, 10 id. 308. Gould’s Pleadings, 176, § 15.)

Here certainly no reguest whatever is averred, and I think not necessarily or fairly implied. The instrument is quite as consistent with the idea that the services were performed without any request at all, or at the request of John Stanton Marshall, as at the request of the testator. It seems to m§ this should not he left to inference. The request is a prerequisite to the liability; and I think the pleader should aver it. While pleadings are not to be condemned for want of form, and are to be liberally construed, I think substantial defects are not to be disregarded. We are not to uphold a pleading simply because a state of facts might exist— against what is probable—which would justify an action.

The same considerations apply to the other alternative. I do not see that-the services are, presumed to have been beneficial to Benjamin Marshall. They were rendered to another person—his son—not alleged, not presumed td have beei^ a minor, or in a situation to make it obligatory upon the father to support him.

If every fact fairly inferable from the terms of this writing were spread out on the face of this complaint in the shape of distinct and positive allegations, the complaint would not have stated a good cause of action. If Benjamin Marshall had declared orally, in so many words, what he has thus expressed in writing, I think no one would have supposed he rendered himself liable to an action.

We ought not, I think, to extend the application of section 162 beyond the- probable intent of the legislature, or to give a party the benefit of a cause of action by this indirect mode of averment, when he would not have had it if he had 2>ut his allegations in proper form and in express terms. Some rules of pleading, in the confusion and anarchy introduced by the code, must still be observed; and one of those is, or ought to be, that where a consideration is not implied, or a request is essential to the defendant’s liability, it “ is of the gist of the action, and must be specially averred.” (Gould’s Pleadings, 176.)

The case of Prindle v. Caruthers (15 N. Y. Rep. 425) is not in conflict with the views here expressed. There the consideration, for value received,” appeared from the face of the instrument, and was moreover held to have been argumentatively inferable from the extrinsic allegation that the defendant made his contract in writing. (14 N. Y. Rep. 431.)

It is suggested, that the rule that where a contract is susceptible of a two fold construction, one of which will make it valid and the other void, the legal presumption is in favor of the validity of the contract, may help the plaintiff in this case. The rule turns rather upon a question of evidence or presumption than of pleading. If the question here turned upon the nature of the services rendered, the rule would apply. But it turns upon the. question for whom, or at whose request, were the services rendered, and the absence of any allegation on this point was never, that I am aware, supposed to be aided or cured by this rule.

It is further suggested that the rule of construing a pleading under the code—contrary to what it was before—is to construe it most favorably to the pleader. I do not admit the existence of the rule, to this unqualified extent. It may be admissible on questions of form; but it cannot be applicable in regard to the fundamental requisites of a cause of action.

The order of the special term should be reversed with costs, and judgment rendered in favor of the defendants on the demurrer, with leave to the plaintiff to amend her complaint on payment of costs.

Gould, J. concurred.

Peckham, J.

I cannot concur with my brethren. Though not a promissory note, the paper sued on is a valid contract. The principle ut res magis valeat quam pereat sustains its valid construction. “If susceptible of two constructions, one legal and the other invalid, that interpretation shall be put upon the agreement which will support and give it operation.” (Chit, on Cont. 659, 80. Lewis v. Davidson, 4 M. & Wels. 654.) The law will not presume this to be the debt of the son, when it is not so stated, in order to avoid it by the statute of frauds; nor that the “attention” was to be rendered, when it is quite as plain and consistent that it has been already rendered.

But if this agreement required the aid of external proof, I incline to think that the true construction of section 162 of the code, according to its spirit and intent, dispensed with any averments thereof. The code regards the paper as sufficient notice of the purpose of the action. In fact it can scarcely ever surprise.

There are many cases, under the old forms of pleading, confessedly sufficient, where surprise might be far more safely anticipated. It is conceded that this is within the letter of the statute. It surely harmonizes with the whole spirit of the code, which especially sought to avoid the snares of special pleading. That has been the tendency of our legislation, for years. We who have been educated and have practised under more rigid and technical rules, yield to this tendency with reluctance. This is seen by the decisions under this section, which, I admit, look against what I regard as its true interpretation. It has even been held that an averment must be made, against an indorser, that the note has been protested. This was made unnecessary, by statute, nearly thirty years since, where a copy of the note was served with the declaration; and the code did not intend to take any steps backward, on this subject. .Its design was to avoid technicalities of pleading on the way to a trial on the merits; giving reasonable notice to the adversary of the matters in contest. And the prejudices of education may as well yield to the force of legislation, and give effect to its plain enactments.

The demurrer should be overruled.

But it is said that this construction tends to encourage ignorance in the profession, by sanctioning loose pleading and practice. If this be so, the argument is addressed to the wrong tribunal. The practical effect of the provisions of the constitution of 1846, and the subsequent legislation thereon, is the admission of persons to the bar after a few months of study, instead of the years previously required.

[Albany General Term,

March 4, 1861.

Order reversed, and judgment for the defendants on the demurrer.

Gould, Hogeboom and Peckhem, Justices.]  