
    SPEAR a. DOWNING.
    
      Supreme Court, Third District;
    
      General Term, March, 1861.
    Pleading.—Written Instrument.—Consideration.
    Substantial and radical defects in a complaint may be reached under the general allegation in a demurrer, that it does not state facts sufficient to constitute a cause of action.
    Section 162 of the Code of Procedure, which provides a mode of pleading upon instruments for the payment of money only, applies merely to instruments apparently valid on their face.
    An instrument in the following form,—“ Troy, August 4th, 1846. 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. (Signed) B. M.,” is not a promissory note.
    Such an instrument expresses no consideration, since it affords no presumption that the services referred to were rendered in pursuance of a previous request of the promisor, or that they were beneficial to him.
    Where a consideration is not implied, or a request is essential to the defendant’s liability, it must be specially averred in pleading.
    The rule of construing a pleading under the Code most favorably to the pleader, is not applicable in regard to the fundamental requisites of a cause of action.
    
      Appeal by defendants from order of special term overruling demurrer to complaint.
    The complaint alleged that one Benjamin Marshall, in consideration of the services therein mentioned, made and delivered to the said plaintiff, then a single woman by the name and description of Miss Alice Yourt, his promissory note or instrument in writing, in the words and figures following;
    Troy, August 4th, 1846.
    I hereby agree to pay Miss Alice Yourt twenty dollars per month, during her natural life, for her attention to my son, John Stanton Marshall. Benjamin Marshall.
    The complaint then proceeded 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 1st of September, 1860, had 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 instalments, together with costs of the action.
    The defendants demurred to the complaint, on the ground that the same did not state facts sufficient to constitute a cause of action, and specified the following defects: 1. That the complaint contained no allegation of the performance or bestowment of attention. 2. Mor of the nature, extent, or value of such attention, nor that it was of any value.
    The court at special term rendered judgment for the plaintiff on the demurrer: the defendants appealed.
    
      Charles R. Ingalls, for the appellants.
    —I. Section 162 of the Code does not support the complaint in this action. This provision is to be taken with the qualification that the instrument itself contains all the ingredients of a legal cause of action. To hold otherwise would involve the absurdity of compelling a party to accept the tender of an issue of fact, and go to the circuit upon a complaint predicated upon an instrument void upon its face, simply because a copy of an instrument was set out in the complaint. The general demurrer is to the whole complaint, and its theory is, that the complaint does not present a legal cause of action, and no valid issue of fact is tendered by the pleading. The case of Prindle a. Carruthers (15 N. Y., 425), is not in conflict with this view, because the instrument in that case purported to be for value received, which was a sufficient statement of a cause of action; and, as appears by the opinion of Judge Johnson, the instrument declared on in that case was upheld on that ground, and he quotes 7 Johns., 231, which was decided upon the same ground. (Bank of Geneva a. Gulick, 8 How. Pr., 51; Lord a. Cheeseborough, 4 Sandf., 696; Marshall a. Rockwood, 12 How. Pr., 452.) Justice Harris lays down the principle contended for in this case, viz., that that section only applies to a case where the instrument contains all that is essential to a complete cause of action.
    II. It is now settled by the decision of the Court of Appeals, and of the Supreme Court, that all the facts necessary to be proved must be alleged in the pleading, and no evidence can be admitted to prove a fact for which no foundation is laid in the pleading. (Diefendorff a. Gage, 7 Barb., 18; Kelsey a. Western, 2 Comst., 506; Field a. Mayor of New York, 2 Seld., 179.) The court are not at liberty to presume the existence of facts sufficient to support a cause of action. The instrument in writing is not a promissory note: 1. Because the promise to pay depends upon a contingency, viz., the life of the plaintiff; she might die before an instalment would become due, and hence the time is uncertain. (Prindle a. Carruthers, 15 N. Y., 415, 430, opinion of Johnson, J.; Story on Promis. Notes, 30, § 28; Chitty on Bills, 8 Am. ed., 154, 155.) 2. Not being a promissory note it is not aided by the law merchant, and is only a simple contract, and the consideration must be stated, and one will not be presumed. (Chitty on Contracts, 11.) 3. Again: where a consideration is stated, that becomes a part of the instrument ; and if that is invalid, the instrument fails on that account, and the court are not at liberty to imply a consideration different from the one stated. (Ten Eyck a. Vanderpoel, 8 Johns., 93.)
    III. There is not contained in the instrument, nor alleged in the complaint, a sufficient consideration to enable the plaintiff to recover. The only allegation is as follows: “ For her attention to my son, John Stanton Marshall.” It is not alleged what those attentions were, whether valuable or otherwise, nor indeed that they hactbeen rendered. If it is insisted that the attentions were to be rendered subsequent to the contract, then the contract is void for want of mutuality. If it is attempted to be sustained upon the ground that the attention had been rendered, then it was a past consideration, and can only be supported by the averment of a request on the part of Benjamin Marshall, as such attention was rendered to a third party; and it is not alleged that Benjamin Marshall was in any way connected with those attentions, nor deriving any advantage therefrom: for aught that appears, they were rendered without his knowledge. (Ehle a. Judson, 24 Wend., 97, 98.) The allegation that the attention was rendered to the son of Benjamin Marshall, adds nothing to the consideration; because it is not alleged that-he was a minor, nor that Benjamin Marshall was legally liable to provide for him; nor that he neglected to provide for his son; nor that the attention was such as was proper and necessary for an infant, if the son was such. The law presumes a parent to have discharged his duty to his child, and will not imply a liability on the part of the parent, unless such default is alleged. (2 Kent's Com., 191, 192'; 13 Johns., 480.) A mere moral obligation is not a sufficient consideration from which to imply such a request or sustain a promise. (Watkins a. Halsted, 2 Sandf., 311; Goulding a. Davidson, 28 Barb., 438; Ehle a. Judson, 24 Wend., 97; Parsons on Contracts, 3 ed., 359, note A.) The request should have been alleged in the complaint, and without it the pleading is fatally defective. (Ingraham a. Gilbert, 20 Barb., 152; Hayes a. Warren, 2 Strange, 933 ; Gould's Pleadings, 176, § 15 ; Wallis a. Scott, 1 Strange, 88.)
    IY. The case is not strengthened by an express promise in the form of the instrument set out in the pleadings. (Chilcott a. Trimble, 3 Barb., 506; Chitty on Contracts, 9 Am. ed., 49, 55, 60; Parsons on Contracts, 3 ed., 359, note h; Wennall a. Adney, 3 Boss. & Pull., 249, note) There are some cases where the courts have after judgment presumed a request, but those cases are rare, and are overbalanced by cases where judgments have been arrested for the same defect; this case is embarrassed with no such difficulty, as the question is met at the threshold. (Geer a. Archer, 2 Barb., 125; Mills a. Wyman, 3 Pick., 207; Nash a. Russell, 5 Barb., 556, 558; Chilcott a. Trimble, 13 Ib., 506; Ehle a. Judson, 24 Wend., 97; 10 Barb., 308; 28 Ib., 438; 13 Johns., 257.) The cases establish the rule that a request will be implied only when the party promising was originally legally liable.
    V. The plaintiff’s claim is barred by the Statute of Frauds, as it is an attempt to charge the defendants, as executors of Benjamin Marshall, with the debt of John Stanton Marshall, without stating a consideration therefor.
    YI. The contract is void for uncertainty. It is not alleged what the character of the attentions were; nor whether rendered or to be rendered, nor how long they were to.continue. (Chitty on Contracts, 69; 3 Starkie, 139; 5 N. H., 540; 8 Barn. & Cr., 568, 573.) .
    
      J. A. Millard, for the respondent.
    —I. In this complaint the written instrument is set forth and the amount due stated. This mode of pleading is sufficient under section 1'62 of the Code. (Prindle a. Carruthers, 15 N. Y., 425.) Under any circumstances, as disclosed in this case, it was not necessary to allege performance, or bestowment of attention. The instrument fairly imports that the attentions had then been bestowed, and upon demurrer the court will so infer. All inference is in favor of the complaint. The second demurrer is no better. There is no materiality in stating the nature, extent, or value of the services. The instrument has estimated and fixed the value of the services, and thereby admitted the extent, and the court upon demurrer . will be satisfied with the agreement made by the parties.
    II. The demurrer specifies the particular grounds of defects, and thereby limits the objections to those grounds; and the general ground, that the complaint does not state facts sufficient to constitute a cause of action, will not be heard. (Nellis a. De Forest, 16 Barb., 65.)
   . By the Court.—Hogeboom, J.—I

—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 a. Saratoga R. R. Co., 4 How. Pr., 226; White a. Brown, 14 Ib., 282; Haire a. Baker, 1 Seld., 359; Connecticut Bank a. Smith, 9 Abbott' Pr., 178; S. C., 17 How. Pr., 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 defence 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 specific sum which he claims.

' The instrument in question comes within the literal description of the kind of instrument 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. (Prindle a. Carruthers, 15 N. Y., 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.” (Ib.)

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 defendants liable, this attention must have been bestowed either in performance 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 a. Gilbert, 20 Barb., 152; Ehle a. . Judson, 24 Wend., 97, 98; Goulding a. Davidson, 28 Barb., 438; Wilson a. Baptist Education Society, 10 Barb., 308; Gould’s Pleadings, 176, §15.)

Here certainly no request whatever is averred, and I think not necessarily or fairly implied. The instrument is quite as consistent with the idea that the serviées 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 me this should not be 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, nor presumed, to have been 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 put 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 them is, or ought to be, that where a consideration is not implied, or a request “ is essential to the defendant’s liability, it is the gist of the action and must be specially averred.” (Gould’s Pleadings, 176.)

The case of Prindle a. Carruthers (15 N. Y., 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 Ib., 431.)

It is suggested that the rule that where a contract is susceptible of a twofold 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 of, 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 ón the demurrer, with leave to the plaintiff to amend her complaint on payment of costs.

Gould, P. J., concurred.

Peckham, J., dissented. 
      
       Present, Gould, P. J., Hogeboom and Peckham, JJ.
     