Perkins v. Cushman , 44 Me. 484 ( 1858 )

Appleton, J.

The declaration contains two counts: one on a note dated October 1,1854, for $53,33, payable to Freeman Synder, in eight months, and the other for money had and received.

At the trial no note was produced, and the plaintiff claimed to recover on a lost note.

The declaration describes the note, for the non payment of which, if of any note, a judgment must be rendered. The proof should show the existence of a note corresponding to the one set forth in the declaration, else there will be a variance. But the evidence entirely fails to give any satisfactory description of the note alleged to have been given. It does not appear what was its date, whether payable to Freeman Snyder or to his order, whether on demand or on time, and whether with or without interest. In a declaration upon a bond which is lost and cannot be produced, it is necessary pot only to set out the substance of the whole condition of .thei bond, but also to prove the same as alleged. Stickney v. Stickney, 1 Foster’s R., 61; Rand v. Rand, 4 N. H. R., 267. The same principle is equally applicable to lost notos.

The vagueness and indefiniteness of proof is equally an objection to sustaining the count for money had and received. It is not enough to show that a note was some time given, and payable either on demand or time. By the lltli rules of court, 37 Maine R., 571, the defendant is entitled to “ a specification of the matters to be proved in support thereof.” This, the plaintiff has not given.

The plaintiff is equally unfortunate in his proof of the loss of a note. His intestate, the payee of the note, Freeman Snyder, died at sea, off the island of Sicily, August 15, 1855. The plaintiff makes oath that he finds no note among the effects of the intestate, which have come into his hand, but that he finds a note purporting to be signed by the defendant, which is conceded not to be genuine, and which does not even purport to be a copy. For aught appearing, the note given to the plaintiff’s intestate, may now be ,in existence in the hands of an assignee or indorsee.

The plaintiff failing to show both the existence and the loss of the note set forth in his declaration, must become nonsuit.