
    Thomas McKnight vs. Birhap for the use of Hooper, Peck & Scales.
    
    Where a mere simple contract is the foundation of the action, the plaintiff must allege a consideration.
    In an order for the delivery of a specific article which cannot attend the person of the debtor, the plaintiff must make and set out a demand for the specific article at the residence of the debtor.
    This was an action of assumpsit on an order for 5000 lbs. of lead drawn by one Manchester on Wm. Y. Decker Sc Co. in favor of A. E. Hough, accepted by Decker in his own name, and endorsed by Hough, the payee, to Birhap.— The declaration was in the common form of a declaration on a bill of exchange. Service was on McKnight only, one of the firm of Wm. Y. Decker Sc Co., who appeared and pleaded the gen. issue and several special pleas not having any bearing on the points tobe decided under the writ of error. Verdict for plffs. and judgment thereon: and the case is now brought up to the Supreme Court on the following assignment of errors by McKnight:
    1st. That there is no consideration alleged in said declaration upon which to charge the said Thomas McKnight.
    2. For that the instrument set forth in the aforesaid declaration appears to be payable in lead, and that said declaration contains no special averment of a demand upon the said Thomas McKnight impleaded as aforesaid for said lead.
    3. For that the instrument declared upon by the declaration aforesaid was not negotiable by the laws of this Territory, at the time the same was endorsed to J. W. Birhap aforesaid.
    4. For that the aforesaid action was erroneously brought in the name of J. W. Birhap for the use of the persons aforesaid against the said Thomas McKnight impleaded with Wm. Y. Decker, because the said Birhap could have no legal interest in said instrument by the endorsement aforesaid.
    5. For that no evidence was offered to the court or jury to show the value of the lead for which the instrument set forth in said declaration was given.
    Hempstead and Bradford for the plff. in error.
    Churchman and Bainbridse for dfts.
    For the plaintiff it was argued that in an action on a simple contract it is necessary to set forth and prove the consideration on which the contract was founded. Lawes on Plead, in Ass. p. 28, 48, and note — Ib. 58, 59, 301 — Ch. PL 1, 320,321.329 — Swwnd. Pl.ScEv. 1, 114 — -Ch. on Bills p. 31 — Wheat. Sel. 1, 94 — Slejih. on PI. 196 — 2 Johns. R. 442, Phettyplace vs. Steere — Peters Cond. R. 645, Mandeville vs. Welsh — 4 East 464, Jones vs. Ashlmrnham — 7 T. R. 483, Mitchinson vs. Hewson — Johns. 7, 321 — 3 Caines 286 Lansing vs. MaKillip— 2 Gill and Johns. 230, Planters’ Bank of Pr. George’s Co. vs. Selman — Ch. on Con. 44, 45.
    To this rule there is on exception in favor of hills of exchange. The instrument here declared on is not a bill of exchange. Ch. on Bills 31 — 4 Johns. 296— Ch. on Con. 1, 31 — Wheat. Sel. 1, 241.
    Where the contract is for the delivery of a specific article, a demand should be averred and proved to have been made on the defendant. The instrument is payable in lead, and no demand alleged or proved. Chip, on Con. 28. 29, 30 —lb. 44 — Lauses on Plead in Ass. 236 — Saund. PL Sr Ev. 1, 131 — Ch. PI. 1, 363.
    The instrument declared on was not negotiable, and could not pass by endorsement so as to give endorsee a right to sue in his own name. Choses in action are in general not assignable so as to pass the legal interest, in the manner of bills of exchange. And if a contract to deliver lead could be considered as within the class of instruments so negotiable, yet in this instance the words “or order” necessary to make it negotiable were not used. Ch. on Bills 30— 1 Wheat Sel. 241 — lb. 261 — 5 Petersd. 404 — -1 T. R. 26, Delany vs. Stoddard —-1 East 103 —4 Mass. 511, Dix vs. CohbSf ir. — Swiff’s. Dig. 429.
    If the last point is made out then the fourth error is also sustained, and the suit was erroneously brought in the name of Birhap, he having no legal interest in the contract. At any rate it could not be brought by him in that shape, as the instrument was not payable to order.
    There should have been evidenco to show the value of 5000 lbs. of lead, to furnish a foundation for the verdict.
    For the defendant the statute of Iowa wa3 relied on, which puts simple contracts of this nature on a footing with bills of exchange. And it was argued that the want of a demand was obviated by the plea.
    To this it was replied that the stat. was subsequent to the contract and could not act upon it retrospectively so as to change or affect its character.
   By the Court

Williams, J.

This is an action of assumpsit at the suit of J. W Birhap, who sues for the use of Wm. H. Hooper, George Peck, and Samuel Scales against Wm. Y. Decker & Co. brought to recover the value of 5000 lbs. of lead. The plaintiff declared upon anbrderin words as follows, viz: Messrs. Wm. Y. Decker & Co.—

Gent: — Please deliver A. E. Hough five thousand pounds of lead on my account. April 2, 1838. Thomas Manchester.

On the back of which order is the following endorsement in writing:

“Please deliver the within five thousand pounds of lead to Mr. J. M. Bir-hap. April 4, 1838. A. E. Hough.”

Thereupon the plaintiff filed his declaration in assumpsit as follows:

Dubuque District CL to April Term, 1840.
J. W. Birhap for the use of Wm. H. Hooper, George Peck and Sam’l: Scales, partners under the style and firm of Hooper, Peck and'Scales, plffs.- in this action, complains of Wm. Y. Decker and Thomas McKnight, late partners under the style and firm of Wm. Y. Decker & Co., of a plea of assumpsit, for that one Thomas Manchester did on the second day of April in the year eighteen hundred and thirty-eight, to wit: at the county of Dubuque, make and sign his certain draft or order in the words follow'ing to wit:
Messrs. Wm. Y. Decker & Co.—
Gent'. — Please deliver A. E. Hough five thousand pounds of lead on my ac. (meaning my account.) April 2,1838.
(signed) Thomas Manchester.
Which said draft or order he did then and there deliver over to the said H. E. Hough, and he, the said H. E. Hough, did on the fourth day of April in the year 1838, at the county of Dubuque aforesaid, endorse and assign and deliver over to said J. M. Birhap the said defendant or order. And the said defendants, partners as aforesaid, did then and there accept the said dft. or order payable to said Birhap as aforesaid, whereby said defendants became indebted to and liable, and did then and there assume and promise to pay said Birhap, who sues as aforesaid, the said five thousand pounds of lead when the same should he demanded, (to wit: at the county aforesaid,) and the said plff. avers that the said lead was worth and equivalent to the sum of two hundred and fifty dollars lawful money of the United States; which said sum the said dfts. became then and there liable, and then and there did assume and promise to pay said plaintiff who sues as aforesaid whenever the same should be demanded. And yet the said five thousand pounds of lead or the said sum of money, they the said defendants have not paid, although often thereto requested, but to pay the same or any part thereof have hitherto wholly neglected and refused, and still done-gleet and refuse, to the damage of said plaintiff four hundred dollars, and therefore he brings suit. Chuhchmaw & Bainbridge, Attys. for plff.

Issue was thereupon joined on defendants’ plea of “non assumpsit,” and the cause having been tried in the Court below the plaintiff obtained judgment for the sum of one hundred and seventy one dollars damages together with costs of suit.

The cause having been brought here by writ of error, the plaintiff in error asks that the judgment of the Court below be reversed, because—

1st There is no consideration alleged in the declaration on which to found a promise and undertaking of the defendant to pay.

2d. The instrument declared on is payable in lead and the declaration contains no averment of a demand for said lead.

There were some other poin s of error alleged in- the assignment, but the above were relied on as sufficient for the plff. in error here.

The instrument on which this action is founded is a simple contract. When the plaintiff brought his suit it was incumbent on him to seek his remedy by declaring in accordance with the well established rules of pleading. The rule is that when a mere simple contract is the foundation of the action, the plaintiff must allege a consideration. This rule has been held requisite except in some peculiar instances, such as actions brought upon bills of exchange, &c. The present action cannot be saved by the exception- The declaration sets forth no allegation of a legal or good consideration. In this there is error, and such should have been the decision of the Court below. Vide Lawes on Pl. in As. 49 — idem 58 — idem 301 — CA. Pl. v. 1, 320.21 — 1 Saund. on Plead. Ev. 114.

The second error assigned is also good ground for reversal.

The plaintiff below should have set. out in his declaration a demand made of the defendant for the specific article called for by the order. Without proof of such demand before the jury he could not recover in money the value of the lead. Every material allegation should appear in the declaration. Such is the character of the instrument here declared on that the plaintiff was bound to aver a demand and prove it. The ruléis “that where an instrument of writing contains a promise to pay in a specific article which cannot attend the person of the debtor, it is supposed to be at his place of residence and the creditor must there demand the payment before he can maintain his action for the value thereof in money.” Chvpman on Contracts, page 28 — Saunders on Pleading Sf Ev. .131 — Chiihfs Pleading, vol. 1, 362.

Judgment reversed and new trial awarded.  