
    Seth H. Tracy, Resp’t, v. Solomon H. Tracy, App’lt.
    
      (Supreme Court, General Term, Fifth, Department,
    
    
      Filed January 23, 1891.)
    
    Pleading—Complaint—Non-payment must be alleged.
    The complaint in an action for goods sold, for services, upon a promissory note, or contract must allege non payment or breach of the contract. In weighing a pleading no presumption can be indulged that a person in the ordinary course of business does not fulfill his contracts.
    
      {Salisbury v. Stinson, 10 Hun, 243, overruled.)
    Appeal from an order and interlocutory judgment entered in Allegany county, June 27, 1890, overruling the defendant’s demurrer to certain causes of action stated in the complaint
    
      Rufus Scott, for app’lt; Loveredge & Leggett, for resp’t
   Macomber, J.

The defendant demurred to the first, second, third, fourth, fifth, sixth, ninth, tenth and eleventh counts or causes of action stated in the plaintiff’s complaint, on the ground that they severally fail to state facts sufficient to constitute a cause of action.

The second, third, fourth and fifth causes of action are, undoubtedly, sufficiently stated. Each of them contains an allegation of an indebtedness owing by the defendant to the plaintiff upon contract. The language of each count is that the defendant is indebted to this plaintiff,” thence follow the particulars of such indebtedness in each instance.' Section 531, Code Civ. Pro.

The decision in respect to the other causes of action, namely, first, sixth, ninth, tenth and eleventh, stated in the complaint, rests upon different considerations.

The first cause of action is for professional services as attorney and counselor-at-law. The allegation is that from the year 1871 to and including the year 1882, the plaintiff at the request and under the retainer and employment of the defendant rendered to the latter services as a lawyer, giving the items thereof. There is no allegation that the services were not paid for as they were rendered nor any other allegation tending to show a breach of the contract made by the defendant

The sixth cause of action is based upon an alleged renting, in the year 1884, by the plaintiff to the defendant of a harness used by the latter for two years in which the same was materially injured and depreciated in value to an amount therein stated. In this instance there is no allegation of a failure on the part of the defendant to pay for such use.

The ninth cause of action is upon a promissory note alleged to have been made by the defendant whereby six months after the date (viz.: 2d day of July, 1883) the defendant promised to pay to the plaintiff or bearer $100 dollars with interest for value received, and then and there delivered the said note to the plaintiff.

The tenth and eleventh causes of action are upon other notes under like allegations.

In neither instance is there an allegation that the note remains unpaid or that the defendant failed to pay it or that he is indebted to the plaintiff for any sum of money upon either of these instruments.

The special term in deciding against the sufficiency of the demurrer in respect to the causes of action demurred to other than the second, third, fourth and fifth, deemed itself bound by the decision of the case of Salisbury v. Stinson, 10 Hun, 242. In that case the general term of the first department held that a complaint alleging that the plaintiff “ sold and delivered to the defendant certain goods of the value and for which the defendant agreed to pay' $164.68,” is sufficient, and that it is not necessary to allege that the demand has not been paid or that it remains due and unpaid at the time of the beginning of the action.

In its opinion the court says that proof of the facts and sale and of the delivery of the goods to the defendant, together with an agreement to pay a stipulated price therefor, are all the facts that need be alleged or proved upon thev trial. The court there conceded that under the former practice the complaint would, doubtless, have been bad on special demurrer for not alleging a breach of contract, but held that under the present system of pleading a breach is presumed on proof of the facts alleged.

The reasoning of the learned justice writing that opinion, notwithstanding the high character of the court pronouncing it, is not altogether satisfactory to us. That judgment stands alone upon this subject. That it has not met the approval of the profession may be seen in the 15th Albany Law Journal, 479.

A plain and concise statement of the facts constituting the cause of action is all that is required to be pleaded. But what is the cause of action ? It is certainly not the sale and delivery of the goods with a promise to pay. The only cause of action of the seller against the buyer arises when the buyer fails to perform his contract according to the agreement and when there is an actual breach of the contract. That it is the breach of the contract and not the contract itself that gives the right of action, is assumed throughout all systems of procedure. In the Code of Civil Procedure that assumption appears clearly in §§ 420 and 1212. If there be a fallacy in the reasoning of the court in the case of Salisbury v. Stinson, supra, it consists in confounding pleading with proof. In an action upon a promissory note, for instance, on the trials if the plaintiff appears with the note in, his possession a presumption arises that the note remains unpaid, but it is a presumption of evidence and has no relation to the matter of pleading. The complaint should be such that if there is no answer or appearance by the adverse party a true judgment could be taken under §§ 420, 1212 and 1213 of the Code. In weighing a pleading no presumption can be indulged that a person in the ordinary course of business does not fulfill his contracts; and we do not see that a pleading which merely brings the allegation of fact up to the breach without alleging the breach can be made good by indulging in any such presumption.

It follows that the order and interlocutory judgment in respect to the first, sixth, ninth, tenth and eleventh counts of the complaint should be reversed, and that in respect to the second, third, fourth and fifth counts such order and judgment should be affirmed, without costs of this appeal to either party, with leave, however, to the plaintiff to amend his complaint in respect to the counts above ad j udged to be insufficient, and with leave to the defendant to withdraw his demurrer in respect to the other counts, and to answer.

Dwight, P. J., and Corbett, J., concur.  