Relyea v. Drew , 1 Denio 561 ( 1845 )

By the Court, Beardsley, J.

The covenants of the respective parties to this suit appear to be fully set out in the declaration, and the plaintiffs have averred performance on their part. So far the declaration is correct. But this alone is not enough to show a right of action against the defendants. The plaintiffs were bound to go further, and in due form to assign such breaches of the defendants’ covenants as were relied upon as grounds for a recovery of damages.

A chief object of formal written pleadings is to apprise the opposite party of the real cause of complaint against him, so that he may, in like manner, interpose the proper answer on his part, and that on the trial he may not be taken by surprise. This requires that the injury complained of, should be stated with such fulness and certainty in the declaration as to leave no reasonable doubt of the particular transaction on which the plaintiff relies, and which he intends to prove, to establish his right of action. (1 Ch. Pl. 7th Am. ed. 244.) These are common-place principles, and apply to every pleading which is required to be special in its nature.

In this case several grades or rates of compensation are specified in the contract declared on, and the plaintiffs must recover, if at all, according to some one or more of the specified rates. They may be entitled to recover at different rates for different periods of time during the season of 1842; for instance, at the rate of three thousand dollars per month, for one period; one thousand for another, and five hundred for the residue; but for a single period, only one rate of compensation can in. any case be allowed. And the particular rate which may be recovered, is not made to depend upon what the plaintiffs or the defendants may themselves do, but upon the rate of fare for the time being for a passage between New-York and Albany on certain lines of boats, or one of them, as is specified in the contract. The fare on these lines may have varied at different times in the season of 1842. This was anticipated by the contract, and the change would affect the amount which the defendants were bound to pay. Such was their engagement by the terms of the contract. If the fare, on the boats referred to, was as high as three dollars a passage, the monthly payment was to be three thousand dollars ■ but if the fare fell below one dollar, the sum per month was to be five hundred dollars.

In effect, the defendants entered into several distinct engagements, each of which depended upon a particular event in the nature of a condition precedent. They were only bound to pay at the rate of three thousand dollars per month when the fare was as high as three dollars; if less than that sum, then the monthly payment was to be reduced; but its amount, in every case, was to depend upon the rate of fare for the same pariod.

The defendants had an undoubted right to know what rate of compensation per month was claimed by the plaintiffs. This was of the substance and essence of the controversy between them. If different rates were demanded for different periods, this also should appear in the declaration; and the ground on which each particular rate was claimed should also be statéd. Hence the passage fare between New-York and Albany for each separate period must be stated ; for upon that alone the amount of the monthly payment depended.

In these respects this declaration is defective. It does not show what rate of compensation is demanded by the plaintiffs, or what the passage fare at any time during the' season of 1842 was. The plaintiffs may intend to claim three thousand dollars a month, or they may demand but five hundred, and as every thing is left at large by this declaration, they may design to prove the fare to have been three dollars, or any other amount whatever. On these important and indeed vital points, the declaration furnishes not even an intimation of what is intended. It is plainly bad. The plaintiffs cannot set out the contract and then aver that a large sum of money became and was due upon it, and which had not been paid. They must show in particular how the sum or sums demanded became due and payable. If three thousand dollars per month are claimed, it must appear that the passage fare was at least three dollars, and so of any other rate of compensation which may be demanded.

The defendants are entitled to judgment, but with leave to amend on payment of costs.

Ordered accordingly.