Maine Central Institute v. Haskell , 71 Me. 487 ( 1880 )

Syaíonds, J.

We think there is no defect in the manner of setting forth the consideration for the promises alleged in the declaration, such. as to render either of the counts bad upon general demurrer. There is the averment in each of a good and sufficient, or a valuable consideration, in general terms; while in the second and third, the allegations of the expenditure of money upon the faith of the promises are such as to show a consideration for them, at least to the extent of the testator’s proportion of the expense incurred. There is no defect in the substance of the pleading on the matter of consideration.

But the three counts are all defective for want of a proper averment that the claim was presented in writing to the defendants, executors, and payment demanded, thirty days or more before action brought, as required by the laws of 1872, c. 85. In the first two counts there is no averment about it; in the third, one that is substantially defective and insufficient. The statute requires that the claim be presented in writing. The declaration avers only that notice of the claim was given in writing. Written notice of a claim is not necessarily the same in substance as a presentment of the claim in writing. The one might be equivalent to the other, or might not; depending upon the terms of the notice. But the fault in the count is that it avers neither a presentation of the claim in writing nor what, upon reasonable construction, is necessarily equivalent. Nor does the count allege demand of payment.

It is essential to the maintenance of the action against the executors to aver and prove what the law of 1872 requires. The defects are substantial and advantage may be taken of them by a general demurrer.

The right of the plaintiffs to amend, and the terms, are defined by the statute. E. S., c. 82, § 19. The presiding judge had no power to grant leave to amend before joinder in demurrer; but after ruling and before allowing exceptions be had "the same power as the full court to allow the plaintiff to amend or the defendant to plead anew.” Under another clause the right of the defendant to plead anew is limited to cases where the demurrer to the declaration is tiled at the first term. In the present instance, tha pro forma ruling having been against the demurrer, there was no occasion then for the plaintiff to amend. If the case were before us simply upon exceptions to that ruling, and the exceptions were sustained and the declaration adjudged defective, it would then be for the judge at Nisi Prius, after the case “was remanded, upon proper motion, to rule in the first instance whether the declaration was amendable or not; — that question not being before this court upon a mere exception to the overruling, or to the sustaining, of the demurrer. In such case, if the declaration was amendable, "the plaintiff may [might] amend upon payment of costs from the time when the demurrer was filed.”

But here the parties have stipulated that the law court shall " determine whether the amendment asked by the plaintiff can be allowed if the declaration is held insufficient, and if so, upon what terms.”

We think the declaration is amendable in the respect indicated, the amendment is a proper one, and in such case the statute gives the plaintiffs the right to amend on payment of costs from the time of filing the demurrer.

Declaration defective. Amendment allowed on terms.

Aurleton, C. J., Walton, Barrows, Daneorth and Peters, JJ., concurred.