Page images



[Money lent.] On or about the day of plaintiff lent to defendant the sum of dollars [if a corporation, add, borrowed by it to be used in — stating object within its business or special powers], in cash, which said sum, less dollars which is the only part thereof which has been repaid to plaintiff, [with dollars interest thereon from said date, amounting in the whole to dollars] is now justly due from defendant to plaintiff.13

[--- or thus:] Plaintiff lent to defendant, on the day of , 19 , dollars to aid in purchasing a lot in [designating location], no part of which has been repaid, and which is now justly due and owing with interest.74

[-- or thus:] Plaintiff lent defendant at various times, between the day of , 19 , and the day of

, 19 , sums of money amounting together to dollars. 75

[--- the same where note has been given.] The defendant has, from time to time, borrowed of the plaintiff the following sums of money [stating them, with dates as nearly as practicable] that no portion of said sums has been paid, and there is now justly due plaintiff from the defendant the sum of [fifteen hundred] dollars, the amount of cash so borrowed, for which plaintiff holds the note of the defendant, of which the following is a copy [setting forth copy] upon which the sum of dollars of interest has accrued to this date.76

[For loan of credit by assuming payment.] The plaintiff assumed the payment of the sum of dollars, at the Bank of

, on the day of , 19, by which a note of

dollars, made by me, payable to the order of M. N., at the said Bank, dated the day of , 19 , and indorsed by the said M. N. and one 0. P., was paid and taken up."

Supp. 587. Variances held imma terial: Robinson v. Hawley, 45 App. Div. 287, 61 N. Y. Supp. 138; Fuller 1. Straus, 44 App. Div. 348, 60 X. Y. Supp. 717; First Nat. Bank 1. Carleton, 43 App. Div. 6, 59 N. Y. Supp. 635.

73 This form is sustained by Johnston v. McAusland, 9 Abb. Pr. 214.

74 This form is supported by Frost v. Koon, 30 N. Y. 428.

75 This form is supported by Frost v. Koon, 30 N. Y. 428; but it is desirable to state the amounts and dates

of the various loans, and separate the principal from the added interest, if any. To say that the amount confessed is “a balance due of various sums of money loaned * * * and includes interest” is wholly insufficient. Wood v. Mitchell, 117 N. Y. 439.

76 Sustained by Ely v. Cook, 28 N. Y. 365, 2 Abb. Ct. App. Dec. 14; Mather r. Mather, 38 App. Div. 32, 55 N. Y. Supp. 973.

77 Sustained by Lanning v. Carpenter, 20 N. Y. 447.

[--- a shorter form.] The plaintiff has assumed for the defendant the payment of the sum of dollars, due from defendant to M. N., for which the defendant has given to the plaintiff a note made by said defendant for dollars, payable days from the

om the day of , 19 .98 [For goods sold.] The plaintiff, at various times between the

day of , 19, and the day of 19 , sold and delivered to me large quantities of [here indicate nature of goods, as, meat, or, cloths, trimmings, and other furnishing goods79] of the aggregate value of dollars; that upon such sales I have paid only the sum of dollars and there is now justly due to him on account thereof, a balance amounting to

dollars, with interest thereon from the day of

now justly have paid o aggregate value trimmings,


[ocr errors]

[On an account.] The plaintiff lent moneys [or, sold and de livered, designating articles) to me, at various times within the last years, as per the schedule annexed,81 upon which there have been made by me the payments indicated in said schedule, and there is now due [ dollars, with dollars interest thereon from the day of

19 , amounting together to] the said sum of dollars.

78 Sustained in Ely v. Cook, 28 N. Y. 365, 2 Abb. Ct. App. Dec. 14.

79 While a general statement that it was “goods, wares, and merchan dise" seems to have been held enough in Gandall v. Finn, 2 Abb. Ct. App. Dec. 232, the decision is of doubtful authority in view of later rulings. See Bradley v. Glass, 20 App. Div. 200, 46 N. Y. Supp. 790.

80 This form is sustained in Neus baum v. Keim, 24 N. Y. 325; Read v. French, 28 N. Y. 285; Schoolcraft t'. Thompson, 9 How. Pr. 61; Lyon 1. Sherman, 14 Abb. Pr. 393; and McKee v. Tyson, 10 Abb. Pr. 392. But it would be insufficient, if it did not show within what period the goods were furnished. Mckeet. Tyson (above). It is well settled that a mere general statement of indebted ness for goods sold is not sufficient, even though it were sufficient to sustain a judgment in an action. See Bradley v. Glass, 20 App. Div. 200, 46 N. Y. Supp. 790; Blackmer v. Greene, 20 App. Div. 532, 47 N. Y. Supp. 113, aff’d, 154 N. Y. 749;

Moody v. Townsend, 3 Abb. Pr. 375. Upon the other hand, it is not essential to furnish all the minuteness of detail which would be requisite in a bill of particulars. Schoolcraft v. Thompson, 9 How. Pr. 61; Davis v. Morris, 21 Barb. 152; Hoppock v. Donaldson, 12 How. Pr. 141; Gandall v. Finn, 2 Abb. Ct. App. Dec, 232.

Merely saying goods “furnished ” or “ delivered” was held in Purdy v. Upton, 10 How. Pr. 494, to be insufficient, because the creditors have a right to know whether defendant took the property upon a contract of sale, and became liable by reason of that fact, or whether he took it upon some other contract and became liable upon some other fact

. It is not necessary to state that the price was not paid, or that it is justly due or to become due. Lanning v. Carpenter, 20 N. Y. 447.

81 Set forth the items and dates, and the amounts if loans, or values if merchandise. Sustained by Cle. ments v. Gerow, 1 Abb. Ct. App. Dec. 370, where it was held that omission 83 Adapted from Anderson v. Shutts, 114 Apr. Div. 308; Lanning v. Carpenter, 20 N. Y. 447, and Freligh v. Brink, 22 N. Y. 418. If practi. cable, state when lent, and the sum;

[Account stated:] That between 19 , the plaintiff loaned and advanced to me divers and sundry sims of money which I agreed to repay them with interest, and also did and performed work, labor, and services for me in selling merchandise for me upon commission and guaranteeing the accounts of the same; on

, 19 , I had an adjustment of accounts with said plaintiff concerning all the said matters, whereby it was found that I was justly indebted to him in the sum of

dollars, which sum he thereupon demanded from me, and which amount I agreed to pay to him; no part, however, of said sum has been paid, and there is still due and owing to him from me the full and true sum of dollars, with interest from said

, 1982 [For purchase money of lands.] On the day of 19 , at , the plaintiff sold and conveyed to me a piece of land in the town of , county of

State of known as follows: (very brief description] for which I then promised to pay him said dollars, no part of which has been paid and the whole thereof is justly due and owing.

[On a promissory note.] On a promissory note given by me to said plaintiff [or, to M. N., and transferred to and now owned by said plaintiff] dated on the day of , 19 , pavable on , 19, for dollars, that amount of money haring been lent me by said

, and upon which said note there is this day due the sum of dollars. 83 [- - a fuller form.] On the day of , 19, at

, I made and delivered to the plaintiff my promissory note [or, my acceptance of a bill of exchange), of which the following is a copy: [give copy, and state the indebtedness for which note was given, e. g., thus] The consideration of said note Tor, acceptance] was a loan of dollars made by the plaintiff to me, on the day of

, 19 , at

, which sum I then and there promised to repay, with interest, within

to annex the schedule was not fatal.
Doubtful validity, under later de-
cisions if schedule omitted. See Wood
V. Mitchell, 117 N. Y. 439.

82 Sustained in Critten v. Vredenbergh, 151 N. Y. 536.

[blocks in formation]

months thereafter [or, on demand], and to secure the payment of which sum said note [or, acceptance] was given. 84

[The same, defendant the payee.] That said note was duly discounted by the plaintiff, and the proceeds thereof paid to and retained by me; that said note was not paid at its due date, and was duly protested by said plaintiff and I was given due notice thereof; that said note remains wholly unpaid and there is due from me to plaintiff thereon the sum of dollars. 85

[The same; plaintiff a transferee of note.] That prior to 19 , I was indebted to M. N. for money loaned to me by him, and for interest accrued thereon; that on said date the amount due was adjusted and fixed between us at the sum of dollars, for which I gave my note to said M. N., bearing date on said day, and payable to the order of said M. N. months after date, with interest. A copy of said note is as follows: [copy]. That prior to the date of this confession of judgment said note has been, for value received, transferred by said M. N. to the above-named plaintiff, who is the owner and holder thereof. That no part of said note, or the sum due thereon, or accrued interest, has been paid by me, and the whole amount thereof, to-wit, dollars principal, and accrued interest is due and owing by me. 86

[On a bond.] On or about the day of , 19 ,I gave to the plaintiff my bond, dated on that day, in the sum of

dollars, to secure the said sum of dollars which was the balance of purchase-money for certain mill property, in county, town of

, conveyed by him to me.87 [For services of an attorney.] On or about the day of

, 19, the plaintiff, being an attorney-at-law, was retained by me to sue [or, to defend a suit brought by] one M. N., and between the day of , 19, and the day

, 19 , plaintiff rendered professional services to me in said action88 [indicating, if convenient, what judgment was


84 A confession of judgment on a promissory note is not enough with out stating the facts constituting its consideration, and the consideration should be stated, if practicable, with the same detail which would be desir. able in case of a confession of judg. ment for the original consideration, had no note been given. Chappel v. Chappel, 12 N. Y. 215; Moody V. Townsend, 3 Abb. Pr. 375.

Carleton, 43 App. Div. 6, 59 N. Y.
Supp. 635.

85 Adapted from First Nat. Bank v.

86 From Wild v. Porter, 22 App. Div. 179, 47 N. Y. Supp. 1036, 59 App. Div. 350, 69 N. Y. Supp. 839, aff’d, 173 N. Y. 614.

87 Sustained by McDowell v. Daniels, 38 Barb. 143.

88 Sustained by Stebbins v. East Society of M. E. Church, 12 How. Pr. 410.

recovered, if any, and where docketed], which services were reasonably worth dollars, interest whereon to this date is

dollars, and upon which I have made no payment. [For balance due on judgment.] There is a balance due from me on three several judgments in the Supreme Court in favor of plaintiff against me, which judgments were docketed 19 , and were obtained upon notes discounted by the Bank, of

county, for the defendants, and the avails paid to me. 89

[For debt not yet due. As above and stating when to become due, adding:] And this confession of judgment is made to secure the plaintiff in case of nonpayment of the said sum when due."

[On the contingent liability to an accommodation indorser.] A note made by me for dollars, payable at the (naming the bank). and bearing date on or about the day of 19, and due on or about the day of , 19 , was indorsed by the plaintiff before its maturity for my benefit” (and by me negotiated to M. N., of

92). [The same of a draft.] My draft upon [naming drawees], of the city of

dated the day of , 19 , payable at sixty days from date, for dollars, and indorsed by said A. B. [the plaintiff] as my surety and for my benefit.93

[-- of an acceptance.] On the day of , 19, at

, the plaintiff accepted a bill of exchange for dollars, made by me, dated the day of , 19 , and payable days after the date thereof, to my order, and then and there delivered said acceptance to me to be used for my benefit.

[On the day of , 19 , I procured such acceptance to be discounted by one M. N., who paid me the said sum, deducting legal interest thereon for the time the said note then had to run.94

the plain about thor abou

89 Sustained by Union Bank v. Bush, 36 N. Y. 631, 637.

90 In support of such a confession, see Truscott v. King, 6 N. Y. 147; Ackerman v. Hunsicker, 85 N. Y. 43, 39 Am. Rep. 621,

91 This form is sustained by Healy v. Preston, 14 How. Pr. 20.

92 See note 94 (below).

93 This form is sustained by Dow v. Platner, 16 N. Y. 562.

94 This paragraph should be in. serted when the note has been in fact negotiated. It is not necessary, however, that a note indorsed for accommodation should be negotiated for value, in order to create a contingent liability on which a judgment may be confessed. Healy v. Preston, 14 How. Pr. 20.

« PreviousContinue »