Earle v. Fid. & Deposit Co. of Md.

• Decision Date: 24 February 1908
• Citation: 68 A. 1078
• Parties: EARLE v. FIDELITY & DEPOSIT CO. OF MARYLAND.
• Court: New Jersey Supreme Court

68 A. 1078

EARLE

v. FIDELITY & DEPOSIT CO. OF MARYLAND.

Supreme Court of New Jersey.

Feb. 24, 1908.

Suit by Ralph D. Earle, Jr., against the Fidelity & Deposit Company of Maryland. Judgment for defendant on demurrer to the declaration.

Argued November term, 1907, before GUMMERE, C. J., and BERGEN, J.

Joseph D. Bedle and Raymond Dawson, for plaintiff. William I. Lewis, for demurrant.

GUMMERE, C. J. The suit in this case is upon a bond of the defendant company conditioned for the faithful performance, by one Brazos, of a certain contract made by him with the assignor of the plaintiff. Upon oyer had of the bond, it appeared that it contained a number of conditions the performance of which by the obligee was, by the terms of the instrument, made precedent to a right of recovery thereon. The ground of demurrer is that the declaration contains no averment, either general or special, of performance by the obligee of these conditions precedent. It is argued on behalf of the plaintiff that a demurrer is not a proper pleading to reach this defect, because the bond is not made a part of the declaration, or referred to in it in such a way as to make it a part thereof. This argument is without merit. In 1 Chitt. on Plead. 434, it is said: "The tenor of the instrument as it appears upon oyer is considered as forming part of the declaration, and, if the Instrument be found to contain an answer to plaintiff's case as stated in the declaration, the defendant's course is to demur, He may demur of in the declaration any part of the instrument which qualifies the contract as shown in the declaration be ommitted or misstated therein." In Brown v. Warden, 44 N. J. Law, 178 (at bottom of page), this doctrine is inferentially approved; the court saying: "The error of counsel of the defendant was in not putting properly on the record a copy of the bond in question, thus showing that it was subject to a condition which was not stated in the declaration, an end readily to be accomplished by craving oyer of such instrument, and setting it out in the demurrer." Clearly a demurrer is the proper pleading to raise the question sought to be presented.

The demurrer should be sustained. Conditions precedent must be averred to have been performed in order to disclose a cause of action. Harrison v. Vreeland, 38 N. J. Law, 369. The omission of an averment of performance of a condition precedent, or of an excuse for nonperformance, is fatal on demurrer. I Chitt. Plead. 127.

The...