Wilkinson-Gaddis Co. v. van Riper

• Decision Date: 12 June 1899
• Citation: 63 N.J.L. 394,43 A. 675
• Parties: WILKINSON-GADDIS CO. v. VAN RIPER.
• Court: New Jersey Supreme Court

43 A. 675

63 N.J.L. 394

WILKINSON-GADDIS CO.

v. VAN RIPER.

Supreme Court of New Jersey.

June 12, 1899.

(Syllabus by the Court.)

Action by the Wilkinson-Gaddis Company against Rachel Van Riper. Demurrer to the declaration overruled.

Argued February term, 1899, before MAGIE, C. J., and GARRISON, LIPPINCOTT, and COLLINS, JJ.

Skinner & Ten Eyck, for plaintiff.

Frank Van Cleve, for defendant.

LIPPINCOTT, J. The declaration contains a special count on a contract of guaranty and the common counts. The demurrer is general to the whole declaration, which is bad pleading in this case, but it has been consented that argument and determination be had as if there had been a plea to the common counts and a demurrer to the special count.

The first objection under the specifications is that the declaration does not aver the contract of guaranty to have been in writing. The averment of the declaration in this respect, after the formal statement contained therein, is that "the said defendant guarantied to the plaintiff the payment of all bills then contracted and thereafter to be contracted with it by the said Richard Van Riper to the extent of three thousand dollars." If it be conceded that the contract of guaranty here sued on is a collateral one to answer for the debt of another.—that is, for the collection of the debt,—still this appears to be a sufficient statement of the obligation, so far as this objection is concerned. The general rule of pleading is that, when a statute makes a writing necessary in a common-law matter where it was not so before, in declaring on that matter it is not necessary to state that it is in writing, although it must be proved in evidence; but when the matter is created by statute, and a writing is required, then the pleading must aver the existence of the writing. Brandt, Sur. (Ed. 1878) § 77, and cases cited. This is the rule as to all contracts coming within the statute of frauds. They need not to be stated to have been in writing. 1 Chit. Pl. 222. In proof they must be shown to have been in writing, so that they may appear to be such contracts as are enforceable pursuant to the statute, but in declaring on a contract within the statute it need not be averred to have been in writing. The law presumes that fact, and what the law intends may be omitted in the averment of pleading. Steph. Pl. (2d Ed.) 418, 419, and note; Raym. 450; 1 Saund. Pl. 276, and notes 1 and b; Id. 211, note 2; Iron Co. v. Rutherford, 18 N. J. Law, 105; Bac. Abr. "Statute," L, 3; Wallis v. Frazier, 2 Nott & McC. 180; Nelson v. Dubois, 13 Johns. 175; Baker v. Jameson, 2 J. J. Marsh. 547. The demurrer cannot be sustained on this ground of objection.

The only other objection is that, considering the contract as one of pure guaranty, the declaration should have averred due diligence to recover the amount from the principal debtor, or else averred, as an excuse for the want of such diligence, his insolvency. Upon a collateral contract of guaranty for the collection of the debt, this is the rule of pleading. But I think this objection is founded upon a mistake as to the character of the contract or undertaking upon which the declaration is founded. It will be seen that the guaranty or contract upon which the action is based, as alleged in the declaration, is one in which the defendant engages to make payment herself of the debts contracted for or to be incurred up to the amount named. If it had been a contract of liability upon the failure of the creditor to collect of the principal debtor, or, in...