recover of the endorser thereof, and to render the endorser liable thereon."

To which instructions the defendant excepted.

As to the demand necessary to be proved in this case, we think a sufficient one has been proved. At the day the note fell due, the Notary went to the place, where the note was payable, to wit, at the place previously occupied by the Agency of the Southern Life Insurance and Trust Company. Robbins, the late Agent or Cashier, testifies, that the agency had been removed from Apalachicola, some weeks previous to the day of the alleged presentment of the note. The removal of the Agency rendered the demand, therefore, impossible at the Agency. Proper diligence seemed to have been used, and we are satisfied that when demand was made at the place of payment of the note, and it was found that the agency had been removed, a sufficient demand had been made. Of course, if the agency had simply been removed to another house in Apalachicola, a presentment there would have been necessary; but the testimony was, that it had been removed altogether. It is like a case where a note is payable at a particular place, and a demand being made at the place appointed, it is found shut up or deserted. In such an event, it would amount to a refusal to pay, for the demand would be useless and inaudible. 3 Kent, 96. 16 East. 122. If the agency had been continued at Apalachicola there can be little doubt but that a demand should have been made, within the usual hours of business, of the agency, as the parties are supposed to have contracted with a view to the custom of the bank; but there certainly can be extant no rules or customs of the agency, when the agency itself has no existence.

If Robbins, the former agent, had remained at the place of the agency, with power from the bank to do business, that fact may have altered the case; but Robbins testifies, that he did not consider the room formerly occupied as the agency, as an office; that he was agent up to the time of the removal of the agency, when he ceased also to be agent. The fact of Robbins' being at the place, would have no greater effect than any other person's being there.

If the note had been made payable generally, and not at a particular place, and the maker had removed, in such case it would have been the duty of the holder to have made due and diligent search for him, and made presentment, if within the State; but the case at bar is different. If the note is payable at a particular place, the demand must be made there, because the place is made part and parcel of the contract; and, if, as before stated, the place is found shut up and deserted, it amounts to a refusal to pay. Dickinson v. Bon, 16 East, 110, 8 Bingham, 214; Bayley on Bills, 197-241; Story on Prom. Notes, §§ 205-227; Chitty on Bills, 399, 397, 172, 173, 174. A question may now arise, whether the allegation contained in the declaration, as to presentment of the note, is sustained by the evidence-but it may be laid down as a general principle, that where facts

or circumstances exist, which amount to an excuse, or do away with the necessity of a demand, the declaration may be in the usual form, and proof of the facts which dispense with a formal demand, will in law, be deemed proof of demand. As in the case at bar, no demand in compliance with the terms of the note could have been made on account of the removal of the agency, and this fact being in evidence, it is a sufficient excuse for the non-presentment, and the allegation of the declaration is sustained.

The American cases go to the extent that the averments of demand and notice, in the declaration on a bill or note, were sufficiently supported by evidence of any thing which renders demand and notice unnecessary. Stewart v. Eden, 2 Caines (N. Y.) 121, 2 Am. Dec. 222; Norton v. Lewis, 2 Conn. 478. Hosmer, J., said: "that this mode of declaring, relying on proof of an excuse for the omission to make demand or give notice, had too frequently been sustained to remain questionable."

So, when no demand has been made of the maker, on account of his absence in a foreign country, it was held by Van Ness, that an averment of presentment in the common form was sufficient. Cummings v. Fisher, Anthon, N. P. 2. See, also, City Bank v. Cutter, 3 Pick. (Mass.) 414; 4 Campbell, 52; Hodge v. Fillis, 3 Camp. 463; Ex parte Wallis, 7 Cow. (N. Y.) 523.

So also the fact, that the maker had absconded and could not be found, may be given in evidence, under the allegation that the note was presented and payment refused. Stewart v. Eden, 2 Caines (N. Y.) 121, 2 Am. Dec. 222; Williams v. Matthews, 3 Cow. (N. Y.) 252; Taunton Bank v. Richardson, 5 Pick. (Mass.) 436.

So a promise to pay after notice will be received as evidence of notice. Martin v. Winslow, 2 Mason, 241, Fed. Cas. No. 9,172; Thornton v. Wynn, 12 Wheat. 183, 6 L. Ed. 595; Shirley v. Fellows, 9 Port. Ala. 302.

* * *

The judgment of the court below is affirmed with costs.60

60 Lundie v. Robertson, 7 East, 231 (1806); Greenway v. Hindley, 4 Camp. 52 (1814); Kennon v. McRae, 7 Port. (Ala.) 175, 185 (1838); Camp v. Bates, 11 Conn. 487, 493 (1836); Tobey v. Berly, 26 Ill. 426 (1861); Taunton Bank v. Richardson, 5 Pick. (Mass.) 436, 444 (1827); Goodloe v. Godley, 13 Smedes & M. (Miss.) 233, 239, 51 Am. Dec. 150 (1849); Tebbetts v. Dowd, 23 Wend. (N. Y.) 379, 384 (1840); Gibbs v. Cannon, 9 Serg. & R. (Pa.) 198, 203, 11 Am. Dec. 699 (1822); Farmers' Bank v. Day, 13 Vt. 36 (1841); McVeigh v. Bank, 67 Va. 785, 797 (1875). Accord. Burgh v. Legg, 5 M. & W. 418 (1839). Contra. Aside from the above class of cases excuse for nonperformance of a condition cannot be proven under an allegation of performance. Higgins v. Lee, 16 Ill. 495, 501 (1855); Thompson v. Hoppert, 120 Ill. App. 588, 592 (1905); Smith v. Brown, 3 Blackf. (Ind.) 22 (1832); Duckham v. Smith, 5 T. B. Mon. (Ky.) 372 (1827); Colt v. Miller, 10 Cush. (Mass.) 49 (1852); Shinn v. Haines, 21 N. J. Law, 340 (1848: debt). Accord. Evans v. Howell, 211 Ill. 85, 93, 71 N. E. 854 (1904). Contra.

But there is a tendency to apply the bills and notes rule to insurance cases. German Ins. Co. v. Grunert, 112 Ill. 68, 1 N. E. 113 (1884); West Ins. Co. v.

WHIT.C.L.PL.-21

STEWART MFG. CO. v. IRON CLAD MFG. CO.

(Court of Errors and Appeals of New Jersey, 1902. 67 N. J. Law, 577, 52 Atl. 391.)

Appeal from circuit court, Essex county.

GARRISON, J.1 This is a suit by the Stewart Manufacturing Company upon a contract by which the Iron Clad Manufacturing Company agreed to sell, during two years, 900 heaters under the plaintiff's letters patent, and to pay to the plaintiff license fees therefor, according to a schedule contained in the contract. Breaches of this contract by the defendant might be either (1) its refusal to account for the license fees for the sales of heaters made under the letters patent, or (2) its failure to sell the minimum number of heaters within the prescribed time. In the former case the measure of damage would depend upon the size and pattern of each heater sold as per the schedule of royalties; in the latter case it would be the minimum. rate of royalty upon the number of heaters agreed to be sold.

The plaintiff declared specially upon the former of these breaches, alleging the manufacture and sale by the defendant of 900 heaters under the letters patent and the failure to pay over the royalties due thereon. The contract and the common counts were included in the declaration. At the trial the plaintiff proved that during the two years covered by its suit the defendant had sold 386 heaters, upon which, if manufactured under the plaintiff's patent, the sum of $293.70 in license fees would be due according to the table of royalties. The plaintiff was, however, unable to prove that the heaters so sold were made under the plaintiff's patent. A citation from the charge of the learned judge before whom the cause was tried correctly states the proof upon this point. "As a matter of fact," he says, "they (the defendants) have sold three hundred and eighty-six heaters. There is no proof in the case that the heaters which they sold were heaters under the Stewart patent-no absolute proof-but, [and in what follows the learned judge fell into error of law, as I conceive it] inasmuch as they were bound to sell and pay for more heaters under the Stewart patent than they actually sold, I think we have the right to assume that the heaters which they sold were made in pursuance and in fulfillment of their contract, and that they are, therefore, in the absence of other proof, fairly to be taken as made under the Stewart patent." The judge then proceeded to add, to the 386 heaters charged for at royalty rates, enough heaters to make up the 900 which the contract called for, to wit, 514 heaters, upon which, inasmuch as they had not been manufactured at all, the lowest royalty was charged, to wit, 25 cents, making $128.50, which two sums, together

Sheets, 67 Va. 854, 874 (1875); Levy v. Insurance Co., 10 W. Va. 560, 27 Am. Rep. 598 (1877). Accord.

61 Part of the opinion omitted.

with interest, made the amount for which a verdict was directed for the plaintiff.

The error of law into which I conceive that the trial court fell was that of confusing the two breaches of the contract, which, as has been shown, differed not only in their essential nature and in the proof necessary to sustain them, but also in their measure of damage and in the pleading applicable to each. To charge the defendant with having sold 900 heaters under its contract, on each of which a specific royalty was due, did not in the least degree tend to charge it with having failed to sell 900 heaters as required by the contract. Similarly, to prove that the defendant had failed to sell 900 heaters (if that proof could have been made under the pleadings) did not in any wise tend to prove that the heaters which it had sold had been manufactured under the plaintiff's letters patent. Nor is the matter helped by the presence of the common counts, each of which charges a general right based upon something that has been done, and none of which charges either a general right of recovery because of what has not been done, or a particular failure of the defendant to do some specified thing, except it be his mere failure to

pay money.

62

The direction under review gave to the plaintiff a verdict to which each of these breaches contributed, made up, as it was, in part of royalties upon sales that had been pleaded but not proved, and in part of damages for a breach that had been proved but not pleaded." If error entered into either of these judicial rulings (and apparently it entered into both), the judgment below, which is an entirety, cannot stand. In any event, therefore, there must be a reversal of the judgment brought up by the writ of error.

* * *

The result is that the judgment is reversed upon the defendant's writ of error, with costs, and that the plaintiff's writ of error is dismissed, with costs to the defendant."

62 Kidder v. Flagg, 28 Me. 477 (1848); Penn. Nav. Co. v. Dandridge, 8 Gill & J. (Md.) 248, 313, 29 Am. Dec. 543 (1836: probably applying the principle too strongly). Accord.

63 A breach must be alleged. Blakey v. Dixon, 2 B. & P. 321 (1800); Canfield v. Merrick, 11 Conn. 425 (1836); Black v. Woodrow, 39 Md. 194, 217 (1874) semble; Williams v. Staton, 5 Smedes & M. (Miss.) 347, 353 (1845); Atlantic Co. v. Young, 38 N. H. 451, 75 Am. Dec. 200 (1859); Myers v. Davis, Fed. Cas. No. 9,986 (1868); Carroll County v. Collier, 63 Va. 302, 307 (1872) semble. Accord.

The breach alleged must be a breach of the promise alleged. Anonymous, Hardres, 320 (1662); Withers v. Knox, 4 Ala. 138 (1842); Atlantic Co. v. Young, 38 N. H. 451, 75 Am. Dec. 200 (1859).

64 The facts constituting the breach must be alleged. Knight v. Keech, Skinner, 344 (1694) semble; Weigley v. Weir, 7 Serg. & R. (Pa.) 309 (1821) semble; Smith v. Walker, 1 Va. 135 (1792: probably too strict). But this rule does not apply where the acts violating the contract are very numerous. Smith v. Railroad, 36 N. H. 458, 485 (1858). Or consist in a failure to use care. Gliddon v. McKinstry, 25 Ala. 246 (1854). Or are the failure to pay money. Butterworth v. Le Despencer, 3 M. & S. 150 (1814).

"When there is a special count, on a promise to pay money, and general

II. GENERAL ASSUMPSIT

COUNTS IN GENERAL ASSUMPSIT FOR MONEY LENT AND FOR GOODS SOLD AND DELIVERED.

(2 Chitty, Pleading [13th Am. Ed.] pp. *17, *37, *55, *87, *90.) In the Common Pleas.

at

next after

day of

in the county of

in Michaelmas Term, 1 Will. 4. Middlesex, (to wit) C. D. was attached to answer A. B. of a plea of trespass on the case upon promises; and thereupon the said A. B., by E. F., his attorney, complains. For that whereas the said defendant heretofore, to wit, on the in the year of our Lord was indebted to the said plaintiff in the sum of £- — for so much money by the said plaintiff before that time lent and advanced to the said defendant, at his special instance and request, and being so indebted, he, the said defendant, in consideration thereof, afterwards, to wit, on the day and year last aforesaid at aforesaid, undertook, and then and there faithfully promised the said plaintiff to pay him the said lastmentioned sum of money, when he, the said defendant, should be thereunto afterwards requested.

And whereas also the said defendant afterwards, to wit, on the day and year last aforesaid, at aforesaid, in consideration that the said plaintiff, at the like special instance and request of the said defendant, had before that time, sold and delivered divers goods, wares, merchandize, and chattels to the said defendant, he, the said defendant, undertook, and then and there faithfully promised the plaintiff to pay him so much money as the last-mentioned goods, wares, merchandize and chattels, at the time of the sale and delivery thereof, were reasonably worth, when he, the said defendant, should be thereunto afterwards requested. And the said plaintiff avers, that the said lastmentioned goods, wares, merchandize and chattels, at the time of the said sale and delivery thereof, were reasonably worth the further sum of £ of like lawful money, to wit, at aforesaid, whereof the said defendant, afterwards, to wit, on the day and year aforesaid, there had notice.

Nevertheless, the said defendant, not regarding his said several promises and undertakings, but contriving and fraudulently intending craftily and subtly to deceive and defraud the said plaintiff in this be

counts, a general breach is sufficient, but where the special count is on a promise to do or perform any other act, such count ought to allege a breach of the contract." From Farnsworth v. Nason, Brayton (Vt.) 192 (1819). Butterworth v. Le Despencer, 3 M. & S. 150 (1814); Beardsley v. Southmayd, 14 N. J. Law, 534, 543 (1835) semble. Accord. Ellis v. Turner, 19 Va. 196 (1816: breach at end of common counts will not suffice for special count though for money). Contra.