I concur in the result upon the ground that the complaint alleges an agreement on the part of the partnership to execute notes for the amounts stated payable at the dates stated, and the fact that the notes were not executed in the apparently agreed form does not prevent maintaining the action *Page 153 upon the original agreement. I agree to the proposition that under the Negotiable Instruments Act parol evidence is inadmissible to change the status as an indorser of one who places his signature upon an instrument before its delivery to the payee, otherwise than as maker, drawer, or acceptor.
I do not agree to the proposition that, in an action against an indorser as such, it is not necessary to allege the essential elements of his liability, among which are presentment for payment on the day of maturity and prompt notice, as required by the Act, to the indorser of non-payment. There is no reason for a departure from the well-established rule of pleading that whatever must be proven must be alleged; that these facts are necessary to be proved is conceded in the leading opinion.
In Treadway v. Nicks, 3 McCord, 195, it is declared:
"The rule is, that it is incumbent on the plaintiffs to state such a case on their record as will clearly show the defendant's liability. Now to charge the defendant, it was indispensably necessary that the order should have been presented to Carr, and that he should have refused to have accepted or had accepted and not paid, and that the defendants should have had notice of the non-acceptance or non-payment by Carr; and this count contains no such averments."
In 8 C.J., 901, it is said:
"Where it is sought to charge the drawer or the indorser, presentment, demand, non-payment, and notice thereof, where conditions precedent to his liability must be substantially alleged, or a sufficient excuse for the omission must be stated."
Mr. Randolph says (Volume 3, § 1204):
"The indorser of a negotiable bill or note is only liable upon receiving due notice of its dishonor. And such notice must be proved, and cannot be presumed to have been given. *Page 154 And it should be specifically averred in the pleading, and not simply stated as `due diligence.'"
In Bliss, Code Pl. (3rd Ed.), § 387, it is said:
"Every collateral fact necessary to give effect to the main charge should be stated. * * * Thus notice when necessary to create a liability must be alleged. * * * A demand is sometimes necessary * * * to show a conditional liability by parties to commercial paper. * * * Where the demand is necessary it must be pleaded."
In Conkling v. Gandall, *40 N.Y., 228, it is held:
"If it is necessary as against indorser (which it unquestionably is) to establish his liability, to prove a demand of payment and notice of dishonor of the note, it is incumbent upon the pleader to state these facts, otherwise the cause of action is defectively stated."
To the same effect are: Kennon v. McRae (Ala.) 3 Stew. P., 249; McDougal v. Rutherford, 30 Ala., 253; Gracev. McDaniel, 13 Ark. 394; Rogers v. James, 33 Ark. 77;Jones v. Middleton, 29 Iowa, 188; Bosch v. Kassing,64 Iowa, 312; 20 N.W., 454; Bank v. Haden, 35 Mo., 358;Jamison v. Copher, 35 Mo., 483; Spellman v. Weider (N. Y.), 5 How. Pr., 5; Bank v. Gulick (N.Y.), 8 How. Pr., 51; Tousley v. Schwind (Ohio), 1 Clev. L. Reporter, 148;Peale v. Addicks, 174 Pa., 543; 34 Atl., 201; Bank v. McElfish,48 W. Va., 406; 37 S.E., 541; Burwell v. Gaylord,119 Minn., 426; 138 N.W., 685; Grimes v. Tait,21 Okla. 361; 99 Pac., 810; Shaffer v. Govreau, 36 Okla. 267;128 Pac., 507; Sykes v. Kruse, 49 Colo., 560; 113 Pac., 1013;Wisdom v. Bille, 120 La., 700; 45 South., 554; Ewald v.Faulhaber, 55 Misc. Rep., 275; 105 N.Y. Supp., 114; SecurityCo. v. Fields, 110 Va., 827; 67 S.E., 342.
It is conceded that the question is ruled by the provisions of Section 212 of the Code relating to the method permitted of pleading conditions precedent. That section provides that in pleading the performance of conditions *Page 155 precedent in a contract it shall not be necessary to state the facts showing such performance, but that it is sufficient to state generally that all of the conditions have been duly performed. The conditions precedent in the case at bar are that demand was made upon the payer at the maturity of the note, and due notice of non-payment given to the indorser. There is not a hint in the complaint that the plaintiff recognized the existence of any such condition precedent, and not the semblance of an allegation general or specific that they were fully performed. It is sought to cover this defect in the general statement that the defendants are indebted to the plaintiff; an allegation that would be appropriate as well to their liability as makers. In the case ofHollings v. Bankers' Union, 63 S.C. 192; 41 S.E., 90, cited in the leading opinion, there was a general allegation in the complaint that all conditions had been performed, and the Court held that that was sufficient under Section 212. In the case of Hilburn v. Paysinger, 1 Bailey, 97, also cited. the action was in the summary process jurisdiction, in which, like actions in Magistrate Court, great liberality of pleading was permitted, and the decision was placed expressly on that ground.