McCarty v. Beach

Field, J., delivered the opinion of the Court Terry, C. J., and Baldwin, J., concurring.

This is an action upon a bond, executed by the defendant to the plaintiff in March, 1854, in the penal sum of three thousand dollars, conditioned for the release and satisfaction, within four months thereafter, of a mortgage upon premises previously sold and conveyed to the plaintiff. To the complaint—which avers the sale and conveyance; the existence of the mortgage; the execution of the bond; the failure of the defendant to comply with its conditions, and consequent sale of the premises under the mortgage, and their loss to the plaintiff—the defendant demurred, assigning for cause thereof, fifteen different grounds. The demurrer was sustained, and from the final judgment rendered thereon the appeal is taken.

On the hearing, the counsel of respondent confined his argument to two grounds—and which, it may be said, are the only two meriting notice : first, the want of any averment in the complaint of a consideration for the bond; and, second, the want of any averment of special damage.

E"either of these are well taken. The first ground is answered by the fact that the bond, which forms a part of the complaint, is a sealed instrument, to which the law imports a consideration from the seal. At common law, a party was not permitted to plead a want of consideration as a defence to an action upon a sealed instrument—the presumption of the existence of a consideration being absolute and conclusive. (Vraaman v. Phelps, 2 Johns., 177; Door v. Munsell, 13 Johns., 430.) The statute of this State has modified the rule in this respect so far as to permit [464]the want of consideration to be pleaded. It has not, however, altered the presumption which still accompanies the instrument, but allows it to be rebutted in the answer. Its language is, “ it shall be lawful ” for the defendant “ to plead such want of consideration.”

It is true, that where a want of consideration for the execution of the instrument is apparent from the averments of the complaint, the fact may be taken advantage of by demurrer, but such is not the present case.

The want of any averment of special damage, if such were the fact, could not be reached by demurrer. This is not one of those cases where the right of action itself depends upon the special injury received. For the breach of a contract an action lies, though no actual damages be sustained. (Sedg. on Dam., 53; Marzetti v. Williams, 1 Barn. & Adol., 415.)