14 Magauran v. Tiffany, 62 How. Pr. 251.

15 Kerr v. Blodgett, 25 How. Pr. 303; 16 Abb. Pr. 137.

16 Derby v. Yale, 13 Hun, 273.

17 Bailey v. Bergen, 4 Thomp. & C. 642.

18 Kerr v. Blodgett, 25 How. Pr. 303; 16 Abb. Pr. 137.

122. Agency.

If an agent possesses due authority to make a written contract not under seal, and he makes it in his own name, whether he describes himself as agent or not, or whether the principal be known or unknown, the latter may be made liable, and will be entitled to sue thereon in all cases. And in a suit thereon, the contract is admissible in evidence under an allegation that the plaintiff, by an instrument made by his agent, contracted with the defendant." And in an action upon such contract by a third person, against the principal, the plaintiff may aver that the principal entered into the contract. Thus, in a suit upon a promissory note, whether made by the defendant himself or by his agent, the complaint or petition should charge that the defendant made the note, and this charge would be sustained by proof that the signature was by the defendant personally, or by his duly authorized agent. And the fact that the name of the defendant did not appear upon the face of the note would not prevent the plaintiff from introducing evidence to show that he was bound thereby. When a person assumes to act as the agent of another, he impliedly warrants that he has authority to so act. And if a person without authority assumes to contract in the name of another, he does not thereby become personally liable on the contract, and the only remedy the person contracted with has against him is an action for deceit in case he has acted fraudulently, or if there were no fraud therein, by an action for the breach of the warranty of authority; and a complaint stating all

8

the facts will be sufficient to support a recovery, although the warranty be not specifically stated as the basis of the claim.9 Where, in an action to recover for services rendered to a county, the plaintiff alleged that he was employed by the county, through an agent, this was held to be a sufficient allegation of employment by the county, and that it was not necessary to aver the agent's authority.10

1 Nicoll v. Burke, 78 N. Y. 580; 8 Abb. N. C. 213; Briggs v. Partridge, 64 N. Y. 357. See Schaeffer v. Henkel, 7 Abb. N. C. 1, 12, n.

2 Nicoll v. Burke, 78 N. Y. 580; 8 Abb. N. C. 213.

3 See Slevin v. Reppy, 46 Mo. 606; Cochran v. Goodman, 3 Cal. 211.

4 Slevin v. Reppy, 46 Mo. 606. And see Abeel v. Harrington, 18 Kan. 243.

5 Moore v. McClure, 8 Hun, 557.

6 Noe v. Gregory, 7 Daly, 283.

7 Noe v. Gregory, 7 Daly, 283.

8 Noe v. Gregory, 7 Daly, 283; Baltzen v. Nicolay, 53 N. Y. 467 ; Dung v. Parker, 52 N. Y. 494; White v. Madison, 26 N. Y. 117.

9 White v. Madison, 26 N. Y. 117.

10 Call v. Hamilton County, 62 Iowa, 448.

123. Bills and notes-Complaint.-A promissory note or bill of exchange imports a legal consideration, prima facie, and in an action thereon it is not necessary to aver the consideration in the complaint or petition.' A description of the note or bill is sufficient, without an averment of the consideration; 2 and the omission of the words "for value received" is not material.3 In a complaint upon a promissory note, an allegation of its non-payment is material, and if omitted the complaint is demurrable. But a complaint on a promissory note, which avers its execution and gives a copy of the note, need not otherwise show a promise to pay;5 and the fact that the allegation of indebtedness or the demand for judgment does not state that it is upon the note, does not make the complaint demurrable. An allegation in the complaint that no "part of said note, principal, or

interest has been paid" is a sufficient averment of a breach. An averment that the defendant made and executed his note, whereby he promised, etc., sufficiently avers delivery, and a further averment that after its execution the note was left in the maker's hands does not rebut the inference of delivery. An allegation that the payee of the note sued on indorsed it to the plaintiff, by writing his name on the back thereof, is a sufficient averment of ownership; and in such an action it is not necessary to allege or prove a consideration for the indorsement.10 If the complaint sets forth a copy of the note, it need not allege that the defendants made the note, nor show how they are connected with it. As against an indorser, an averment that the note was presented to the maker at maturity for payment, and payment thereof demanded, but the same was not paid, of all which due notice was given to the indorser, is a sufficient averment of presentment, refusal, and notice.12 But averment of due protest is not equivalent to an allegation of notice.13 When the plaintiff alleges presentment and notice of dishonor, he is not permitted to prove that the defendant waived such conditions, in the absence of proper averments of a waiver.1 An averment of due notice will not be sustained by evidence of facts excusing notice.15 A complaint by an assignee against the maker of a promissory note need not exhibit a copy of the indorsement.16 But in a suit by the first indorser against the second, it is incumbent upon the plaintiff to allege the special circumstances charging the defendant, and it is not enough to set out the note, averring that the defendant indorsed at the time of making the note. In an action by the heirs at law of a decedent, upon a promissory note payable to him, the complaint must allege every fact necessary to give the heirs a right of action, and to show

66

that they are entitled to the money.18 A complaint on a bill of exchange, drawn under a promise to accept such bill when drawn, need not aver an acceptance, and a complaint which avers the promise to accept, and the refusal, is sufficient.19 An action may be maintained upon a promissory note which has been destroyed, and where a copy of the note is given with or made part of the complaint or petition, the destruction of the note need not be averred.20 And such action may be maintained without the plaintiffs giving the indemnity required in an action upon a lost note.21 A complaint on a promissory note which fails to allege any payee is bad on demurrer. 22 Under the Colorado Code, the time of execution of the note sued upon is a traversable fact, and must be stated in the complaint.23 An allegation that the note sued on was indorsed and assigned by the payee to the plaintiff" is held equivalent to an allegation that the note was assigned by indorsement thereon in writing. An allegation that a business corporation, for value received, made and delivered a promissory note, sufficiently states a valid contract, and it may be presumed, upon demurrer, that it was for a purpose within the general powers of the corporation. The complaint in an action by the payee of a non-negotiable note, against one indorsing it before delivery, must allege that the defendant indorsed it with intent to become liable thereon, either as maker or guarantor.26 In an action upon a note, if there be a variance between the description of the note in the complaint and the copy thereof filed with the complaint, the latter is presumed to be correct.27

24

1 Underhill v. Phillips, 10 Hun, 591; Durland v. Pitcairn, 51 Ind. 426; Keesling v. Watson, 91 Ind. 579; Winters v. Rush, 34 Cal. 136; Alden v. Carpenter, 7 Colo. 92; Lindell v. Rokes, 60 Mo. 249. And see 19, ante. 2 Underhill v. Phillips, 10 Hun, 591.

3 Kimball v. Huntington, 10 Wend. 675; Underhill v. Phillips, 10 Hun, 591; Jeffries v. Hager, 18 Mo. 272; Taylor v. Newman, 77 Mó. 257.

4 Frisch v. Caler, 21 Cal. 71: Davanay v. Eggenhoff, 43 Cal. 395. Compare Keteltas v. Myers, 19 N. Y. 231.

5 Reynolds v. Baldwin, 93 Ind. 57.

6 Smith v. Fellows, 26 Hun, 384; 14 N. Y. Week. Dig. 151.

7 Jones v. Frost, 28 Cal. 245.

8 Wochoska v. Wochoska, 45 Wis. 423. And see Ricketts v. Harvey, 78 Ind. 152; Keesling v. Watson, 91 Ind. 580; Wulselmer v. Sells, 87 Ind. 71.

9 Rubelman v. McNichol, 13 Mo. App. 584. And see Keller v. Williams, 49 Mo. 504; Simpkins v. Smith, 94 Ind. 470; Keteltas v. Myers, 19 N. Y. 231; Farmers' etc. Bank v. Wadsworth, 24 N. Y. 547; Mechanics' Bank v. Straiton, 36 How. Pr. 190; 5 Abb. Pr. N. S. 12; Jaeger v. Hartman, 13 Minn. 55. Compare Montague v. Reineger, 11 Iowa, 503. In an action by two executors upon a promissory note, given to one in settlement of a debt due from the maker to the estate of the decedent, it is not necessary to allege that the note was indorsed to them, if it be alleged that they are owners: Leland v. Manning, 4 Hun, 7.

10 Rubelman v. McNichol, 13 Mo. App. 584.

11 Butchers' etc. Bank v. Jackson, 15 Abb. Pr. 218; Ferner v. Williams, 37 Barb. 9; 14 Abb. Pr. 215; Hill v. Place, 7 Robt. 389; 5 Abb. Pr. N. S. 18; 36 How. Pr. 26.

12 Young v. Miller, 63 Cal. 302; Fisk v. Miller, 63 Cal. 367; Spencer v. Rogers' Locomotive Works, 8 Barb. 612; 17 Abb. Pr. 110. And see Conkling v. Gandall, 1 Keyes, 228; 1 Abb. Ct. App. 423; Adams v. Sherrill, 14 How. Pr. 297; Wyckoff v. Andrews, 5 Civ. Proc. R. 410; Chemical Nat. Bank v. Carpentier, 9 Abb. N. C. 301; First Nat. Bank v. Hatch, 78 Mo. 13.

13 Price v. McClare, 5 Duer, 670; 3 Abb. Pr. 253; Cook v. Warren, 88 N. Y. 37. Compare Baldwin v. Doying, 5 Civ. Proc. R. 300.

14 Pier v. Heinrichoffen, 52 Mo. 333; First Nat. Bank v. Hatch, 78 Mo. 13. See Wyckoff v. Andrews, 5 Civ. Proc. R. 410; Clift v. Rodger, 25 Hun, 39.

15 Garrey v. Fowler, 4 Sand. 665; Holmes v. Holmes, 12 Barb. 137; 7 N. Y. 525.

16 Keith v. Champer, 69 Ind. 477; Kline v. Spahr, 56 Ind. 296; Fordyce v. Nelson, 91 Ind. 447.

17 Woodruff v. Leonard, 1 Hun, 632. And see Moore v. Cross, 19 N. Y. 227; Bacon v. Burnham, 37 N. Y. 614; Cowley v. Costello, 15 Hun, 303; Meyer v. Hibsher, 47 N. Y. 265.

18 Williams v. Riley, 88 Ind. 294.

19 Molson's Bank v. Howard, 8 Jones & S. 15; Barney v. Worthington, 4 Abb. Pr. N. S. 205; 37 N. Y. 112.

20 Sargent v. Railroad Co. 32 Ohio St. 449. And see Duckwall v. Weaver, 2 Ohio, 13. That the rule of pleading is different where a negotiable_note properly indorsed is lost: See McClusky v. Gerhauser, 2 Nev. 47. Compare Keithler v. Seydell, 60 Tex. 78.

21 Des Artes v. Leggett, 5 Duer, 156; 16 N. Y. 582. See as to indemnity required in an action on a lost note: Smith v. Young, 2 Barb. 545; Brookman v. Metcalf, 4 Robt. 568; Wright v. Wright, 54 N. Y. 437 Frank v. Wessels, 64 N. Y. 155; Randolph v. Harris, 28 Cal. 561; Blandin v. Wade, 20 Kan. 251.

22 Timmons v. Wiggins, 78 Ind. 297.