Keiser v. Levering

CONREY, P. J.

This is an action to recover possession of personal property. Prom a judgment in favor of the plaintiff, and from an order denying defendant’s motion for a new trial, the defendant appeals.

By the first count of the complaint it appears that the defendant made to the plaintiff a chattel mortgage securing a note on which there was due at the time of filing the complaint the sum of $835. The mortgage contained the usual provision entitling plaintiff to possession of the property, with right of sale to satisfy his claim whenever default should be made on the defendant's obligation. The facts of such default and of demand for possession and of refusal by the defendant are alleged, which the plaintiff averred are to his damage in the sum of $835. Defendant demurred separately to each count of the complaint on the general ground as to’ each count that it did not state facts sufficient to constitute a cause of action, and also on special grounds which we need not discuss. The demurrer was overruled, and answer filed. In support of the general demurrer, defendant contends that the first count does not contain any allegations showing the value of the demanded property, and claims that an allegation of such value is essential to the cause of action. The

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plaintiff in this first count alleges the execution of the mortgage, a copy of which is attached to the complaint, “and made a part hereof to all intents and purposes the same as if recited at length herein.” The schedule of mortgaged articles as set forth in the mortgage purports to give the value of some of those articles. Allowing this as an allegation of value, it would only specify the values at the date of the mortgage and not as of the time of filing the complaint, unless we could assume that such values continued unchanged. It is settled law that recitals in a contract incorporated in a complaint will not supply the want of essential averments in the pleading. Thus, where the complaint alleged the making of a note set forth by copy and the note recited that it was “secured by mortgage of even date herewith,” it was held that this did not amount to an averment that the note was secured by mortgage.

(Hibernia Savings & Loan Society

v.