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prayer therefor.

In view of the extent of the notes to this section, I premise that they are given under
the following heads :



(A) Petitions in actions on express contracts 61

I. Statement of consideration 61

1. General remarks concerning 61

2. Executed considerations 62

3. Executory considerations ; being chiefly conditions precedent 62

(1) Averment of performance or happening of condition precedent 63

(2) Averment of excuses for non-performance 64

a. That performance was impossible when the contract was made 64

b. That performance afterward became impossible without the plaintiff' 1 s fault 64

c. That performance was prevented by the obligor ,.. 65

(a) Involuntary prevention 65

(b) Voluntary prevention 6$

(3) Averments of partial performance when full performance was not prevented by the

defendant 67

(4) As to the mode of suing in cases of conditions precedent 67

4. Concurrent considerations 68

5. Continuing considerations 70

II. Averments as to conditions subsequent 70

III. Statement of contract 70

IV. Averments of notice of plaintiff's acceptance of defendant's offer 71

V. Averments of notice to the defendant of an event, <5rV 72

VI. Averments of a request or demand by the plaintiff \ 73

VII. Averments of tender or readiness 74

VIII. Describing of property, 6v., to which the action relates 74

IX. Assignment of breach of contract 74

X. Averments as to damages and interest 77

(B) Petitions in actions on implied contracts 80

I. What constitutes an implied contract 80

II. Statement of consideration t 80

1. In actions on bills of exchange 80

2. In actions by assignees against assignors of notes • 81

3. In actions on implied contracts generally 81

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III. Averments of diligence on the part of the plaintiff, 81

1. In actions against assignors of notes 81

2. In actions against drawers and indorsers of bills 82

IV. Averments of a request by the defendant 82

V. Averments of a promise by the defendant 82

VI. Averments of notice to the defendant of an events <5rV 83

VII. Averments of a request or demand by plaintiff. 83

VIII. Assignment of a breach of contract. 83

IX. Averments as to damages and interest 83

(C) Petitions in actions on judgments 83

(D) Petitions in actions for breaches of duty imposed by law 84

(E) Petitions in actions for torts 84

I. General remarks 84

1 . As to the character of the action 84

2. As to describing the person or thing to whom or which the action relates 84

3. As to damages 85

II. Petitions in actions for wrongful prosecutions 88

1. According to the common laiu 88

2. According to statutory provisions 89

3. On attachment or injunction-bonds ". . . 90

III. Petitions in actions for injury to reputation 91

1. Libel or slander 91

2. Injury to credit by wrongful prosecution 93

3. Seduction 93

IV. Petitions in actions for injury to the person generally. 96

1. As to the plaintiff's right or interest 96

2. As to the injury 98

3. As to damages 102

V. Petitions in actions for injury to property 102

1. As to the nature of the property 102

2. As to the plaintiff* s right or interest in the property 104

3. As to describing the property 104

4. As to the injury. . . -. „ 104

5. As to damages 105

VI. Petitions in actions for conversion of property to defendant's use.. 105

1 . Actions for the tort. 105

( 1 ) As to describing the property 105

(2) As to the plaintiff's right or interest 105

(3) As to the injury 105

(4) As to damages 106

2. Actions on implied contracts for the value of the property 106

VII. Petitions in actions for possession of specific personal property 106

1. For what properly the action lies 106

2. As to describing the property 107

3. As to the plaintiff's right or interest, 107

4. As to the injury 107

5. Averments of request for delivery of possession 108

6. Allegations concerning value or damage 108

7. As to verdicts and judgments 108

VIII. Petitions in actions to recover real property. . . .' 109

1. For what property the action lies 109

2. As to describing the property 109

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3. As to the plaintiffs right or interest 109

4. As to the injury HO

• 5. As to demand for possession or notice to quit .• HO

6. As to damages Ill

IX. Petitions in actions on statutory causes of action hi

1. Generally Ill

2. As to stating a cause of action on the clause which gives it 1 1 1




" The Code makes no change in the law which determines what facts constitute a cause of
action, except that, by reducing all forms of action to the single one by petition, it changes
the question whether plaintiff's statement of his cause shows facts constituting a cause of
action in trespass or assumpsit or other particular form into the more general question
whether it shows facts which constitute a cause of action at all." 14 B. Af., 85; 7
Bush, 535.

Hence, " a petition which goes for a forcible injury should state such facts as would
be equivalent to an action of trespass at common law. If the trespass be waived, and
the petition go for negligence or want of skill, it should state facts which are equivalent
to an action in case according to common law principles." 16 B. AT., 584; 9 Bush, 527.

A demurrer will not be sustained, if the petition state a cause of action in any form
(Bill v. Barrett, 14 B. Af., 85); to any extent, legal or equitable {Foster v. Watson, 16 B.
M; 387; Robinson v. West, 14 B. AT., 3; Lansdale v. Mitchell, 14 &. AT., 348); though
the style of the action be improperly stated in the petition. Trustees, &c, v. Forrest, 15
B. AT., 168.

But it was held that a plaintiff claiming a legal right, and failing to sustain it by proof,
could not have relief, though, according to the evidence, he was entitled to equitable
relief. Garrett v. Gaull, 13 B. AT., 380.

(A) Petitions in actions on express contracts.

I. Statement of consideration.

I. General remarks concerning.

"So far as regards pleading, considerations are: 1st, Executed, or something past or
"done at the time of the making of the defendant's contract; 2d, Executory, or something
" to be thereafter done or forborne ; 3d, Concurrent, as in the case of mutual promises ;
"and 4th, Continuing, as in the case of contracts between landlord and tenant." I
Ck. PL, 295.

According to the common law it was not necessary for plaintiff to make any statement
concerning the consideration of a contract under seal, unless it showed upon its face that
it was given for other than an executed consideration ; as, in the absence of such showing,
the law presumed a sufficient consideration (3 Bibb, 26) ; and under our statute placing
unsealed upon the footing of sealed contracts (G. S., ch. 22, §2), that rule applies to
written contracts not under seal (2 Afar., 382-83).

But no statute has changed the rule of the common law which requires the statement
of a consideration for an express contract which is not in writing.

It was formerly held that a declaration upon a contract which the statute of frauds
requires to be in writing need not state that it was in writing (I Afar., 336 ; 4 Lilt., 240) ;
but that, if the plaintiff's claim was controverted, he must prove that the contract was in
writing (2 Afar., 33). But it is now settled that, unless the petition show that the contract
was in writing, the court will presume that it was not in writing (4 Met., 373, and cases
cited) ; and a demurrer will lie unless the petition states a consideration. 2 Afar., 382-83.

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2. Executed considerations.

In pleading an executed consideration, less certainty, in general, is required in the
statement of the subject-matter of it, than in describing an executory consideration. I
Ch. PL, 295. And that statement was cited with approval in the case of Howard v.
Chiles, SB. Af. f 377, which was an action for breach of warranty on the sale of a horse;
and in which the plaintiff alleged that the warranty was given in consideration of his pur-
chase from the defendant of "a certain horse " "at and for a certain sum of money; " and
the declaration was held to be sufficient.

But it has been held that an allegation that the defendant " being indebted to the
plaintiff in a certain sum of money," promised, &c. ; or that the defendant, "for a valu-
able consideration/' promised, &c, without stating upon what the debt was founded, or
what the consideration was, is insufficient. Bcauchampy. Bosworth, 3 Bibb, 115; Wick-
Uffe v. Hill, 4 Id., 269.

In the last cited case the court said that "wherever a consideration is necessary to be
alleged, it should be set forth at least in such general terms that the court might be able
to judge whether it was a legal consideration and sufficient to support the promise or
agreement declared on."

But, in Beauchamp v. Bosworth, above cited, it was said that when the action is founded,
not on the defendant's promise to pay a debt, but on his promise to do some act in con-
sideration of the " forbearance of the debt, or the like ; " . . . "as the debt is not the
immediate consideration, but only an inducement to that which is the consideration, it is
not the gist of the action, and need not, therefore, be so certainly and precisely alleged."

3. Executory considerations', namely, " some act to be done or forborne by the plaintiff
or some other event." 1 Ch. PI., 295, 309.

Most of the decisions on this subject relate to conditions precedent.

I do not propose to cite the numerous authorities which show what constitutes a con-
dition precedent, but will suggest that they establish, as a general rule, that a condition
precedent is created by any language showing that a party's right of action depends upon
the happening of an event, or upon the performance of an act by the plaintiff or another ;
as, in case of an agreement to pay money to A after or upon the death of B; or "upon
condition," or "provided," that some act shall be performed by A or another; or "if"
or "when" some act shall be so performed; or "upon" or "in consideration of" such
performance. The words "upon condition" or "provided" or "if," &c, do not neces-
sarily constitute, nor are they necessary to constitute, a condition precedent. Thus, where
several persons subscribed for stock of a railroad company, and agreed to pay $50 per
share in such installments and at such times as might be required by the company " upon
condition that said road shall be so located and constructed as to make the town of Carlisle
a point in said road : .otherwise these subscriptions shall be null and void ; " it was held
that the stock was subscribed for the purpose of aiding in the construction of the road ;
that, to effect that purpose,- it must be paid as the road progressed; and, consequently, as
the road had been so located as to make Carlisle a point, the company had a right to
recover; the construction to that point not being a condition precedent. 15 B. M., 218.
And, on the other hand, where A agreed to pay an attorney $100 for services to be
rendered in managing an action to be brought by him ; the covenant was held to mean
that the attorney should prosecute the action to final judgment with proper care and dili-
gence. 6 Dana, 433.

Pleadings concerning conditions precedent.

The Code of 1854 (§ 149) declared that "in pleading the performance of a condition
precedent in a contract, it shall not be necessary to state the facts showing such perform-
ance, but it may be stated, generally, that the party duly performed all the conditions on
his part." But according to the decision in Averbeck v. Hall, 14 Bush, 505, the omission
of that provision from the Code of 1877 restored the rules of the common law on this

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subject — which I propose to examine: I, as to averments of performance ; 2, as to excuses
for non-performance ; 3, as to partial performance, without an excuse for failing to make
fall performance.

(I ) Averment of performance or happening of conditions precedent.

The common law " ordinarily required the pleader not only to make an allegation of
the performance of a condition precedent, but a statement of the time and manner of its
performance, or an excuse for its non-performance, in order that the court might determine,
as a matter of law, whether the intention of the covenant had been fulfilled, and in order
that a traversfble issue might be presented " (Averbeck v. Hall, 14 Bush, 507, citing 2
Mar., 425, 4 Litt., 137, % Mon., 176, and 6 Id., 324). And "an exact performance must
be stated : as, on a promise in consideration that the plaintiff would procure the loan of
twenty pounds for one year, it is not sufficient to allege that he procured a part at one
time and a part at another " (1 Ch. PL, 316) ; and on a promise, " in consideration that the
plaintiff would acquit A of a debt, it is not sufficient to say that he acquitted him without
saying, vis., by deed" (Id. ; but see Smith v. Robinson, 3 Mon, 174). And in an action for
wages, &c, in consideration that the plaintiff would proceed on a certain voyage, the
particular voyage must be stated ( I Ch. PI., 296). And, in an action on defendant's covenant
to pay the plaintiff a certain sum of money if his wife should die before he died ; but
should she survive him, " as she will have a right of dower in said tract of land [sold by
plaintiff to defendant] the said L [defendant] shall not pay any part of the said sum of
money;" it was held that the. plaintiff's averment that his wife had relinquished dower
did not entitle him to recover. 6 Mon., 171.

And the plaintiff must aver performance of a condition precedent " whether it was in
the affirmative or negative, or to be performed by him or by the defendant or by some
other person, or must show some excuse for non-performance" (I Ch. PL, 309). Thus, in
an action for a third of the profits to arise from sales of certain goods by the defendant,
the petition was held to be defective because, though it alleged that the profits amounted
to a certain sum, it did not state that they had been collected by the defendant (1 Bush,
191). And it was held, in several cases, that, in an action on a promise to pay, "as soon
as able," a debt barred by limitation or by a discharge in bankruptcy, the plaintiff must
allege the defendant's ability to pay (6 Dana, 248; 9 B. M., 45, 480); but in Cecily.
Welsh, 2 Bush, 168, the court, without referring to those or any other decisions held that,
in such a case, an averment of the defendant's ability to pay is unnecessary, because, said
the court, "judgment and execution will be the best test of the defendant's ability to
pay:" in a subsequent case, however, the court, referring to the decisions in 9 B. M., 45
andtfo, and not to Cecil v. Welsh, held that, in such a case, the plaintiff must allege the
defendant's ability to pay ; and, moreover, that the defendant can show the existence of
other debts, contracted after his bankruptcy, sufficient to exhaust his estate. Eckles v.
Gai&reath, &c, 12 Bush, 71.

And as, under our statutes, no person except a licensed tavern-keeper or inn-keeper has
a lien on the baggage of his guests for the price of board, a petition claiming such lien
was held to be defective because it merely described the plaintiff as being "a landlord,
proprietor of the Myer's House" (3 Bush, 681). And, in an action on a bail-bond, the
petition was held to be insufficient because it failed to show that the bond was executed
before the proper officer (2 Met., 490). And in Fry v. Lex. cV B. S. R. R. Co., 2 Met.,
323, it was held that a corporation can not maintain an action even upon a contract exe-
cuted by the defendant, without showing that it has been organized as required by its
charter; but that case is opposed by a decided weight of authority : see 5 Lift., 46; 16 B.
&"» 7. 363; and 13 Bush, 35, in which the court said that "the petition is not only good
on demurrer, but a general traverse by plea that no such corporation existed would be bad
on demurrer, as such a plea is a denial of a fact that the obligor has already admitted."
And, although a plaintiff can not maintain an action for divorce unless he be a resident of

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Kentucky, an allegation that the plaintiff was a resident of Campbell county, omitting
the words " in Kentucky," was held to be sufficient. 3 Busk y 227.

(2) Averments of excuses for non-performance. *

As much exactness is required in alleging an excuse for non-performance, as in alleging
performance, of a condition precedent. Thus, allegations showing that the plaintiff had
performed the acts constituting a condition precedent, " except when prevented by the
defendant," without showing to what extent the plaintiff had performed, or by what means
full performance was prevented, are insufficient. 4 Litt. % 137.

In addition to the discharge of the plaintiff from performance, excuses, or attempted
excuses, for non-performance have beeh :. a, that performance was impossible when the con-
tract was made ; b t that performance afterward became impossible without the fault of the
plaintiff; and, c y that performance was prevented by the obligor.

a. That performance was impossible when the contract was made,

A agreed to pay B, an attorney, $500 if he should obtain a decree against five persons
for certain land ; and it was afterward discovered that E, one of the five, died before the
making of the contract, A having inherited her interest in the land : B, however, pro-
ceeded against the other four, and, having obtained a decree against them, brought an
action of covenant against A for the $500; and the court said that the plaintiff, "so far
from being entitled to recover the amount of his demand, could not recover rateably and
was not entitled to recover on his contract at all. . . . The plaintiff must have dis-
covered, at an early stage of the proceedings, that he could not proceed against Elizabeth,
and might have stopped before he had been at much trouble." Stansberry v. Morgan, 6
Mon., 306.

It is clear, however, as the court impliedly conceded, that B, upon discovering that E
was dead, could have refused to proceed against the other four.

b. That performance afterward became impossible, without fault of the plaintiff.

«* If the consideration be that A shall enfeoff B, and A do all in his power to perform
the condition, and B will not accept livery of seisin, it is clear that the right which was to
depend on the performance of that condition did not arise ; and, if a person undertake
for the act of a stranger, the cases are uniform to show that such act must be performed.
And on this principle, where, by the proposals of an insurance company against fire, it was
stipulated that persons insured should, in case of loss, procure a certificate of the min-
ister, &c, of the parish, importing that they knew the character of the assured, and
believed that he had really sustained the loss without fraud, it was held that the procuring
such certificate was a condition precedent to the right of the assured to recover; and that,
although it was found by verdict that the minister, &c, wrongfully refused to sign the
certificate; yet, as it was not averred in the declaration that the certificate was actually
obtained, the judgment was arrested" (1 Ch. PI., 312). And, in an action on the cove-
nant of T (a conscript), to pay $81.50 to J, "provided the said J performed a tour of six
months under Captain R. S., and obtains for me a legal discharge for the above term ; " the
plaintiff alleged that he obtained T's discharge from six months' service by enlisting and
serving under Captain R. S. 18 days ; and was ready and willing to perform the six months'
tour of duty, but was prevented from doing so by the declaration of peace ; and it' was
held that he was not entitled to recover anything. Jewell v. Thompson, 2 IMt., 52.

And, A having covenanted " to pay B fifty pounds worth of horses, to be valued by
W & N, at their value, as trading for land; " in an action brought by B on the covenant,
for damages for non-delivery of the horses, A pleadecWthat, at the time and place for
delivery, he tendered to B horses of the value of fifty pounds as trading for land ; and
that the death of N prevented him from having them valued by W & N, and it was held
that B was entitled to recover. Bohannon v. Laois, 3 Mon., 376.

*As to excuses, in equity, for non-performance of conditions precedent, see note C to % 90.

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But, if an obligation be to do one of two things and one of them is made impossible
by the act of God or of the law or of the obligee, no action will lie on the bond. 4
Afon,, 150.

c. That performance was prevented by the obligor.

There is a distinction between involuntary and voluntary prevention.

(a) As to involuntary prevention,

•« Covenants implied and covenants in law may be discharged by act of God; but
express stipulations seldom can." (3 Mon., 139, 380; 6/,/l Af., 528.) Thus, in an action
by an attorney against the representatives of A, upon his covenant to pay the plaintiff
$500, provided he should succeed in a certain suit, it was held that he was not entitled
to recover, although the death of A had prevented him from prosecuting the suit to a
determination. 3 Mon., 70.

(b) As to voluntary prevention,

a. It seems that, if the liability of the obligor depend on a condition precedent per-
formable by himself, he can not relieve himself from liability by voluntarily rendering
performance impossible. Thus, where J agreed to pay W a certain sum of money, provided
J should succeed in a certain suit, and he rendered performance impossible by compro-
mising the suit, it was held that W was entitled to the stipulated sum. 13 B, M., 163.

b. And if performance of a condition, performable by the obligee, be prevented by the
obligor ; and if he can, notwithstanding such prevention, maintain an action against the
obligee, the latter can recover as if the condition had been performed. "Thus, where a
party, entitled by contract to a conventional sum of money for a horse upon the delivery
thereof, shall have tendered the horse, according to his undertaking, he may maintain an
action for the price, and the other party will still be entitled to the horse in consequence of
the tender. In such a case, where the doing of a single act or the delivery of a thing is a
precedent condition, not only is a proper offer to do the act, or tender of the thing, proof
that, had it not been rejected, the condition would have been performed ; but the rights
of the parties then become independent, and available to each of them by action or other-
wise ; and therefore, in such a case, a tender of performance will, in all respects, be deemed
equivalent to actual performance." Chamberlain v. McCallister, 6 Dana, 357.

c. And if a condition precedent be performable by a single act of the obligee which is
prevented by the obligor, and the amount of loss thus caused to the obligee can not be
fixed according to the contract ; or, if the condition be performable by several acts, or by
continuous acts, some of which are done by the obligee and others of which are prevented
by the obligor, and the value of the part-performance can not be fixed according to the
contract ; it seems that the obligee can recover the compensation to which performance
would have entitled him ; because, otherwise, the wrongful act of the obligor would, or
might, deprive him of any compensation except nominal damages.

Thus, in Marshall v. Craig, I Bibb, 379, it appeared that Marshall had agreed to pay a
certain sum of money to Craig on condition that he should, within a certain time, purchase
and secure to Marshall the claim of one Briscoe on a tract of land ; and that Marshall
purchased the claim within the time limited and thus prevented performance of the con-
dition ; and it was held that Craig was entitled to the money in the same manner as if he

Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 10 of 142)