2831. The commencement of the declaration is that part which follows the venue in the margin and precedes the circumstantial statement of the cause of action. It contains a statement, first, of the names of the parties to the suit, and if they sue or are sued in another right, or in a political capacity, for example, as executors, assignees, and the like, the character of right in which they sue must be stated; second, of the mode in which the defendant was brought into court; as, "CD was attached or summoned," as the case may be; third, a brief recital of the form of action to be proceeded in. The following is the formula in assumpsit in such cases: "CD was summoned [or attached, when the defendant has been holden to bail] to answer A B of a plea of trespass on the case upon promises," etc." Of course the form must vary with the different forms of actions.

2832. Certainty in the statement of the cause of action is of the utmost importance; but this statement necessarily varies, according to the circumstances of each particular case and the form of action. These will be briefly and separately considered.

2833. The statement of the cause of action in assumpsit is either special or general.

2834. The rules to be observed in the structure of special counts may be reduced to six: those which relate to the inducement; to the consideration of the contract; to the contract itself; to the requisite averments; to the breach; and to the damages.

2835. Inducement is the statement of matter which is introductory to the principal subject of the declaration, and which is necessary to explain or elucidate it; such matter as is not introductory nor requisite to elucidate the substance or gist of the action, nor is collaterally applicable to it, is not inducement, but surplusage. The inducement is in the nature of a preamble, and is useful in making intelligible the statement of the facts in the declaration; for example, on a contract to pay money upon a consideration of forbearance, the declaration begins by stating the debt forborne, and the proceedings that were stayed.29 The allegations in an inducement, when material, must be proved; when immaterial, they may be rejected as surplusage.

2836. It is generally necessary to state upon what consideration the contract upon which the action is brought is founded, unless it be on a contract which is presumed by the law to be founded on a valuable consideration, as upon a bill of exchange or a promissory note; but in other simple contracts the consideration must be stated, whatever may be the form of action. The consideration, as stated, must always correspond with the facts of the case, and be sufficient, in law, to support the promise as laid, and be coextensive with it.30

now in many if not all of the states, the jurisdiction of the courts is by statute made to depend upon the residence of the parties, being limited to the county in which both or one live or do business. The substantial fact therefore is such residence; and this being alleged, the jurisdiction is fixed, and the necessity of alleging any place for the arising of the cause of action is done away with. No special allegation of venue is made now in pleading, and the allegations which take its place are decided by reference to the statutes and rules of court.

Under the old system, for instance, a declaration would allege that the defendant made his promissory note in the said county of Suffolk (the venue) to wit at New York, (the place where the note was actually made and dated.) But under the modern systems the place of making the note, being immaterial, would not be alleged at all.

28

23 Stephen, Pl. 47.

291 Chitty, Pl. 293; Stephen, Pl. 257; Gould, Pl. c. 3, 9; Lawes, Pl. 66, 67; Bacon, Abr. Pleas, I, 2; 14 Viner, Abr. 405; 20 id. 345.

Jones v. Ashburnham, 4 East, 464; Moore v. Ross, 7 N. H. 528; Wills v. Kempt, 17 Cal. 98. The consideration must be stated under the New York code. Spear v. Downing, 34 Barb. N. Y. 522. But not in Iowa, in a suit on a written contract of guaranty. Iowa,

31

2837. Next to the statement of the consideration, the contract itself is usually alleged, and this must be done by setting it forth in some part of the declaration, either in the words in which it was made or according to its legal effect, and if there be a variance, it will be fatal. It must be stated or described as it operates or takes effect in law, although such statement or description should vary, literally or in form, from the matter of fact to be shown in evidence. Where the contract is founded upon a legal liability, and implied, it is sufficient to state such liability, without alleging formally that the defendant promised; as, in assumpsit on a bill of exchange. It is, however, more correct in all cases to state that the defendant undertook, super se assumpsit, or words to that effect. 2838. In stating the consideration, the whole of it must be mentioned, and it must be set forth in the declaration;33 but in stating the contract, it is sufficient merely to state the parts of the promise the breach of which is complained of; and it is not requisite to state in the declaration other parts not qualifying or varying in any respect those the breach of which is complained of.34

When a contract is in the alternative, it must not be stated as an absolute contract, though the option may be in the party pleading.

On a contract in writing, the words of the contract must be pursued, when they are concise and intelligible, and when their effect is doubtful; that is the better course; but the plaintiff is not required to set forth even the material parts in letters and words; the statement of the substance and legal effect will be sufficient.35

When there is a variance between the declaration and the proof, that is, a disagreement or difference between them, its effect will be fatal when the variance is in relation to something material; but when it relates merely to a matter of form, or an immaterial matter, it will not be so regarded.36

37

2839. By averment is meant a positive statement of facts in opposition to argument or inference. Lord Coke says, averments are twofold, namely, general and particular.

2840. A general averment is that which is at the conclusion of an offer to make good, or prove, whole pleas containing new affirmative matter, (but this sort of averment applies only to pleas, replications, and subsequent pleadings; for counts in avowry, which are in the nature of counts, need not be averred,) the form of such averments being et hoc paratus est verificare.

Code, 975; Henderson v. Booth, 11 Iowa, 212. In assumpsit on a warranty of chattels, it is sufficient to aver a sale at and for a certain price, without specifying the amount actually paid. M'Millan v. Theaker, 12 Ohio, 24.

31 King v. Pippet, 1 Term, 240; Andrews v. Williams, 11 Conn. 326; Dorr v. Fenno, 12 Pick. Mass. 521; Churchill v. Merchants' Bank, 19 Pick. Mass. 532; Lent v. Padelford, 10 Mass. 230.

32 Elsee v. Gatward, 5 Term, 145. Enough must be stated to show a legal liability. Thus in a suit against a warehouseman for non-delivery, the plaintiff must allege that the goods belonged to him or that the defendant was under an obligation to deliver them to him. Thurber v. Jones, 14 Wisc. 16. It is sufficient to state facts from which the law implies a promise. Jordan Co. ". Morley, 23 N. Y. 552; contra Wingo v. Brown, 12 Rich. So. C. 279. Omission to state that the defendant promised is cured by judgment. Hoard v. Little, 7 Mich. 468.

33 Brooke v. Lowrie, 1 Nev. & M. 342.

34 Miles v. Sheward, 8 East, 7; Clarke v. Grey, 6 East, 567.

$5 Dorr v. Fenno, 12 Pick. Mass. 521; Lent v. Padelford, 10 Mass. 230; Andrews v. Williams, 11 Conn. 326. If the contract is such as is required by the Statute of Frauds to be in writing, it is not necessary to annex a copy or aver that it is in writing. Booker v. Ray, 17 Ind. 522; Price v. Weaver, 13 Gray, Mass. 272; Rigby v. Norwood, 34 Ala. N. s. 129; Walker v. Richards, 39 N. H. 259; Doggett r. Patterson, 18 Tex. 158. It seems to be otherwise under the New York code. Wentworth v. Wentworth, 2 Minn. 277.

36 Savage v. Smith, 2 W. Blackst. 1104; Ferguson v. Harwood, 7 Cranch. 408; Harrison v. Weaver, 11 Ala, 542.

37 Rex e. Horne, Cowp. 683, 684.

2841. Particular averments are assurances of the truth of particular facts, as, where the life of tenant, or tenant in tail, is averred; and in these, says Lord Coke, et hoc, etc., are not used. Again, in a particular averment the party merely protests and avows the truth of the fact or facts averred, but in general averments he makes an offer to prove and make good by evidence what he

asserts.

38

2842. Considered with regard to their effect, averments may be classed into material and immaterial averments. An averment is material when it is of the gist of the action, when the action cannot be supported without it; an immaterial averment is the statement of unnecessary particulars in connection with, and as descriptive of, what is material. A distinction was formerly made be tween immaterial and impertinent averments; the former must in many cases have been proved, as in the following case: In an action brought on the statute of 8 Anne, c. 14, § 1, by a landlord against a sheriff, for taking in execution and removing from the demised premises the goods of the tenant without leaving effects to satisfy a year's rent, the declaration stated the demise, which it described as reserving a certain annual rent, "payable by four even and equal quarterly payments," etc. On the trial a parol demise was proved, and it appeared there was no stipulation with regard to the time or times of paying the rent; and for this cause the plaintiff was non-suited. Because, though it was confessedly unnecessary to state the time or times of payment in the declaration, and though this statement was immaterial, yet, as it was indispensably requisite to allege a contract reserving rent, and it had been stated as a whole contract, it must be proved. An impertinent averment was one which was irrelevant and foreign to the cause and which might have been struck out as surplusage, as it need not have been proved.

39

In modern times this distinction between immaterial and impertinent averments has been considered as untenable, and the two terms are treated as being synonymous. A more correct distinction has been made between immaterial or impertinent averments and unnecessary averments. The former are those which need not be alleged, nor proved if alleged; the latter consist of matter which need not be alleged, but, being alleged, must be proved.40

2843. Averments must contain not only matter, but form. General averments are always in the same form. The most common form of making particular averments is in express and direct words, for example: And the party avers, or in fact saith, or although, or because, or with this or that, or being, etc. But they need not be in such words, for any words which necessarily imply the matter intended to be averred are sufficient.

2844. An averment is required when the obligation of the defendant to perform his contract depends on an event which would not otherwise appear from the declaration to have occurred; for without an averment of such an event there would be no logical statement of the cause of action. In a special action of assumpsit these averments usually relate to the performance or the excuse for the non-performance of a condition precedent, to the defendant's notice of such performance, and to the defendant's having been requested to perform his

contract.

2845. When the consideration of the defendant's contract was executory, or his performance was to depend upon some act to be done or forborne by the

38 Gould, Pl. c. 3, 185.

39 Bristow v. Wright, Dougl. 665. See 1 Chitty, Pl. 304; Gould, Pl. c. 3, ? 186; Savage v. Smith, 2 W. Blackst. 1101, 1104.

"Williamson v. Allison, 2 East, 446; Twiss v. Baldwin, 9 Conn. 292; Parton v. Holland, 17 Johns. N. Y. 92; Fowles v. Miller, 3 Taunt. 137; Goodpaster v. Porter, 11 Iowa, 161.

plaintiff, or on some other event, before the plaintiff can be entitled to sue he must have performed such precedent condition; for on such performance his right vests, unless he has a good cause for non-performance, and he must therefore aver in his declaration that such condition precedent, whether it were in the affirmative or negative, or to be performed or observed by him or by the defendant, or by any other person, has actually been performed, or he must show some excuse for the non-performance. And when there are mutual conditions to be performed at the same time, the plaintiff must aver the performance or the readiness to perform his part of the contract."

42

2846. The rule as to notice appears to be this: when the matter alleged in the pleading is considered as lying more properly in the knowledge of the plaintiff than that of the defendant, then the declaration ought to state that the defendant had notice of it; but when the matter does not lie more properly in the knowledge of the plaintiff than that of the defendant, notice need not be averred. Notice of the non-payment of a bill of exchange must be averred, because that fact is more properly within the knowledge of the plaintiff than of the defendant; but if the defendant contracted to do a thing on the performance of an act by a stranger, notice need not be averred; for whether the stranger has performed the act lies as much in the defendant's as in the plaintiff's knowledge, and he ought to take notice at his peril.3

2847. A request must be stated in the declaration and proved upon trial, whenever it is essential to the cause of action that the plaintiff should have requested the defendant to perform his contract; as, in an action for not delivering a horse sold by defendant to the plaintiff, it is requisite to aver a special request before action brought, or there must be some allegation to dispense with it."4

There are two forms of pleading a request, the special and the general. The former must state by whom, and the time when, and the place where, it was made; and when a request is essential to the support of the action, a special request must be stated, and it must be shown by and to whom the same was made, and the time and place of making it, so as to enable the court to judge whether the request was sufficient. The latter, commonly called the licet sæpius requisitus, or "although often requested so to do," without stating the time and place of request, though usually inserted in the breach to the money counts, is unnecessary, and the want of it will not vitiate the declaration.46

2848. That part of the declaration in which the violation of the defendant's contract is stated is called the breach; this must in all cases be stated in the declaration, because it is the essential cause of action; when there has been no breach, there is no cause of action.

41

In assumpsit, it is usual to introduce the statement of the particular breach,

Joslyn v. Taylor, 33 Vt. 470; Basye v. Ambrose, 32 Mo. 484; Funk v. Hough, 29 III. 145. It is not always sufficient that a declaration on a contract with concurrent covenants avers readiness to perform in the words of the covenant; it must aver a readiness to perform according to the legal effect thereof. Washington v. Ogden, 1 Black, 450.

42 Hillsborough v. Londonderry, 43 N. H. 451. În an action against a town for injury caused by a defective way, the plaintiff need not aver that he gave notice to the selectmen of the injury and his intention to claim satisfaction therefor, as required by statute, as such notice is no part of the cause of action. Kent v. Lincoln, 32 Vt. 591.

43 Hodsden v. Harridge, 2 Saund. 62, a, n. 4; Cutler v. Southern, 1 Saund. 117, n. Comyn, Dig. Pleader, C, 75.

"Bowdill v. Parsons, 10 East, 359.

45 Whitton v. Whitton, 38 N. H. 127; Baker v. Fuller, 21 Pick. Mass. 318.

2;

46 Dyer v. Rich, 1 Metc. Mass. 180. Where, from the nature of the agreement, a special demand is necessary, but not averred in the declaration, such omission will be cured by verdict, and the sæpius requisitus be held sufficient. Rodgers v. Love, 2 Humphr. Tenn.

417.

with the allegation that the defendant, contriving and fraudulently intending, craftily and subtlely, to deceive the plaintiff, neglected and refused to perform, or did perform the particular act, contrary to his previous stipulation or agreement. The breach must obviously be governed by the nature of the engagement; it ought to be assigned in the words of the contract, either negatively or affirmatively, or in words which are coextensive with its import and effect."

When the contract is in the disjunctive, as on a promise to deliver a horse by a particular day, or pay a sum of money, the breach ought to be assigned that the defendant did not do the one nor the other.48

2849. The breach should not vary from the sense and substance of the contract, and should be neither more limited nor larger than the covenant; and care should be taken not unnecessarily to narrow it, for in this last case the plaintiff may be required to prove more than would have otherwise been required; for example, where a breach of covenant was assigned that the defendant had not used a farm in a husband-like manner, but on the contrary had committed waste, it was held that the plaintiff could not give in evidence the defendant's using the farm in an unhusband-like manner, if such misconduct did not amount to waste, though if the latter part of the breach had been omitted, the evidence would have been admissible.

2850. In personal and mixed actions, but not in penal actions, for obvious reasons, the declaration must allege, in conclusion, that the injury is to the damage of the plaintiff, and must specify the amount of damage.19

In personal actions there is a distinction between those which sound in damages and those that do not; but in either of these cases, it is equally the practice to lay damages. There is, however, this difference, that in the former case damages are the main object of the suit, and are, therefore, always laid high enough to cover the whole demand; but in the latter, the liquidated debt, or the chattel demanded, being the main object, damages are claimed in respect to the detention only of such debt or chattel, and are, therefore, laid in a small

sum.

The plaintiff cannot recover greater damages than he has laid or claimed in his declaration.50

2851. The common counts are certain general counts, not founded on any special contract, which are introduced in a declaration for the purpose of preventing a defeat of a just right by the accidental variance of the evidence. These, in an action of assumpsit, are founded on express or implied promises to pay money in consideration of a precedent debt, and are, therefore, called money counts; they are of four descriptions: the indebitatus assumpsit; the quantum

47 Comyn, Dig. Pleader, C, 45-49; Wotton v. Hele, 2 Saund. 181, b. c. Thus in a petition to recover the price of land sold, an averment, after setting forth the contract, that the plaintiff demanded payment in accordance with defendant's bid, which payment defendant refused to make, is a sufficient statement of the breach. Gardner v. Armstrong, 31 Mo. 535. It is not necessary that a breach should be set out in the words of the contract, but such words must be used as show that they cannot be true unless the contract is broken. Moxley v. Moxley, 2 Metc. Ky. 309.

48 Comyn, Dig. Pleader, Č.

49

Comyn, Dig. Pleader, C. 84; 10 Coke, 116, b. Thus a breach of covenant may be sufficiently averred negatively in the words of the covenant, but unless damages are also alleged, the plaintiff can recover only nominal damages. Jordan v. Blackmore, 20 Ind. 419; Olmstead v. Burke, 25 Ill. 86. A general claim for damages for breach of contract will cover the damages which follow as of course from such breach, but all special damage must be specially alleged. Hill v. Smith, 32 Vt. 433; Warner v. Bacon, 8 Gray, Mass. 397; Bristol Co. v. Gridley, 28 Conn. 201; Smith v. Whitaker, 23 Ill. 367.

50 Comyn, Dig. Pleader, C, 84; Viner, Abr. Damages, R; Tettee v. Prescott, 3 Miss. 686; Crabb v. Nashville Bank, 6 Yerg. Tenn. 333; Maupin v. Tripplett, 5 Miss. 422; Hayton v. Hope, 3 Mo. 53; Rives v. Kumler, 27 Ill. 291.