Porter v. Kingsbury

We have no doubt that the commencement of such an action as this, before the lapse of the ten days after notice (Code, § 348), is fatal to the recovery. The only question here, however, is one of pleading: whether the plaintiff must aver the notice and the lapse of ten days in his complaint. The liability 'of the defendants, in one sense, is perfected and fixed by the judgment in the appellate court. Only the time of commencing the action is restricted by this statutory provision. Under the old system, it would probably have been necessary to aver the notice and the lapse of ten days. And the present case seems to depend on the question whether section 162, in its language or spirit, makes such an averment unnecessaiy. That section allows a party, instead of pleading the facts showing a performance of -conditions precedent, to aver such performance generally. It also allows him to sue on an instrument for the payment of money only, by merely giving a'copy, and stating the amount due thereon. Probably, in accurate language, this undertaking is not an instrument for the payment of money only; nor this statutory i’estriction a condition precedent. At any rate this restriction does not appear in the instrument. A general averment of performance could not therefore be reasonably taken to include an averment of the service of the notice, and of'the lapse of the ten days. Further, it is just to the defendant that he should know whether the plaintiff relies upon the actual service of such notice or a waiver of such service, etc., or whether he claims *599that the notice is unnecessary. This last was a position taken on the present argument. The defendant should thus be notified, so that he may be ready to disprove, if he can, the alleged notice, or the alleged waiver, etc.

On the whole it is more fair to the parties, that the notice and lapse of time should be set forth in the complaint. And the order overruling the demurrer must be reversed, with costs, and the demurrer sustained, etc., with leave, etc.

Ordered accordingly.