The object of the Code of Procedure was to simplify the rules of pleading and practice, by dispensing with technical rules and forms, and -useless verbiage,'and to introduce a system in -which-it should be only necessary to state the substantial matter of complaint.
But unless it has been done by § 162, the Code nowhere dispenses with a statement of- the facts which upon the - trial it is necessary for a plaintiff to prove, in order tomake-oút a cause of action.
Liberality and freedom, as well as brevity and conciseness, are allowable, -but looseness and uncertainty are nowhere sanctioned.
First, then, it-was- necessary, before the- Code,-in declaring on a promissory note against the 'maker,- -that - the' plaintiff should aver.- the making of the note; the promise contained therein or implied thereby; the facts which constituted - the plaintiff the holder,' promisee or -person -entitled to enforce the promise, and the breach of the promise contained in or-implied from the making of the note.
*87These were all matters of substance, and indispensable to a good declaration, and such matters are not dispensed with by the Code, except so far as the section above referred to (numbered 162) has introduced a new practice.
Tested.by these rules, the complaint- in this case appears to me defective. . It consists of an averment that the defendant made and delivered to the plaintiff the promissory note of which a copy is set forth," and that it is payable to -the order of the plaintiff and endorsed, by him. And then, after setting forth the note, the pleader adds, “ that there is dne and owing to" the said plaintiff the said sum of $204 67, with interest from the second day of September.”
The making by the defendant is averred.
The delivery to the plaintiff, payable to his order, is doubtless a sufficient averment of facts constituting the plaintiff the holder, and entitling him to enforce the cause of action, if any.
In conformity with modern decisions, it may be said that an averment of making and delivery of the writing, and giving its very terms, to wit, “I promise to pay,” etc., is a sufficient averment of the promise by the defendant, though it was formerly held otherwise. (See Bac. Abr. Tit. Assumpsit, F.; Morris et ux. v. Norfolk, 1 Taunt. 217; Mountford v. Horton, 2 New R. (5 Bos. and P.), and cases cited in the note.)
The only remaining requisite is the allegation of the breach of promise. This need not be averred in any particular form, but it must be in such form that it charges default of performance of the promise, and charges that default upon the defendant, and in such wise that it may be met by a distinct counter-allegation, so as to create a material issue.
Thus, an averment that the defendant hath not paid the sum mentioned in the said note. And in general, as stated by Chitty (1 Chit. Pl. 325), the breach should be assigned in the words of. the contract,, though it is sufficient to assign the breach in words containing the sense and substance of the contract.
How in this case it is not averred that the defendant hath, not paid, or hath not performed his promise in any form; nor *88even that the money mentioned in the note has not been paid, or that it remains unpaid.
The pleader says that that sum is due and owing to the plaintiff. This is the statement of a mere legal inference from a breach, which is not averred at all. But even this is not charged upon the defendant. He does not aver that the said sum is due and owing to the plaintiff from the defendant.
To warrant the legal inference that the money is due and owing, it is necessary to aver the promise and the breach of it by the defendant, for without both of these no such inference arises. The plaintiff’s counsel insisted, on the argument, that the possession of the note and its production was sufficient to raise the implication that it was not paid. That may be conceded; but that only goes to the mode in which the nonpayment is to be proved, not to show that averment of nonpayment is unnecessary. A plaintiff must aver the facts essential to his right of recovery; the mode of proving those facts is a different matter.
. I think the plaintiff here has failed to put the defendant in default by an averment of any breach of contract or any facts amounting to such a breach, and therefore that the demurrer to the complaint was well taken, unless his complaint can be sustained under § 162 of the Code.
Second. By § 162 it is provided that "in an action founded upon an instrument for the payment of money only, it shall be sufficient for a party to give a copy of the instrument, and to state that there is due to him thereon from the adverse party a specified sum which he claims.”
I agree with the opinion given at special term, that if a plaintiff seeks to avail himself of the privilege given by this section, he must conform to its requirements. He cannot be allowed to say that the legislature have relaxed or dispensed with the former mode of declaring on a written instrument and given a substitute, and now the court may dispense with compliance with the rules required in the substitute itself. The sum claimed is neither alleged to be due, on the note, nor to be due from the defendant.
*89The defects in this complaint are easily amended. The court would not, I think, have hesitated to allow an amendment, even after the demurrer was interposed, without costs. The court have no disposition to withhold indulgence or encourage objections that are trifling or unsubstantial, but there,,must be some rules of pleading and practice, and if so, they must be maintained.
I think the order sustaining the demurrer, and ordering judgment for the defendant should be affirmed.
Order sustaining the demurrer affirmed.