EMERY, V. C.
Action by Charles Goldengay against Charles H. Smith. Submitted on demurrer to the bill. Demurrer overruled.
S. F. Bigelow, for demurrant.
S. M. Cooley, for defendant.
EMERY, V. C. The substantial facts appearing on the bill and relevant to the present hearing on demurrer are these, viz.: On March 9, 1899, one Lyons contracted in writing with the defendant to erect two buildings on defendant's lands, and in consideration of their erection as provided by the contract defendant agreed to pay Lyons $1,900 in four payments, the last payment of $700 to be made when the houses were complete and accepted, provided that on each of the payments there should be produced a certificate of the architect named in the agreement that the work was done according to the drawings and specifications. On June 1, 1899, Lyons delivered to complainant, who had furnished materials used in the erection of the buildings, a written order on defendant for the payment to complainant of $400 from the money then due or that should thereafter become due 'from defendant to Lyons, in accordance with the terms of the contract. On June 1, and again on June 27, 1899, the order was presented to defendant, who refused on both occasions to accept or pay the order. The first three payments under the contract had' been made previous to the date of the order, the last of these three being made on May 27, 1899. The bill avers, on information and belief, "that after presentation of the order,and on or about June 26, 1899, Lyons had wholly completed the erection and construction of said buildings, and had in all ways kept and performed the covenants and agreements contained in said contract; that Lyons then provided a certificate, signed by the said architect, to the effect that the whole work mentioned in said contract had been completed in accordance with the drawings and specifications, and that the defendant thereupon accepted said buildings"; this paragraph of the bill concluding with the averment that "by reason thereof the fourth or final payment of $700 became due and payable." It is further alleged that on June 26, 1899, upon Lyons' production of the architect's certificate, defendant paid to Lyons $300 on account of the final payment, $365.93, and promised Lyons to pay the balance of the $700 in a few days, when he (defendant) came into the necessary funds. Upon a demurrer to the original bill filed in the cause it was held that the bill was defective, because it failed to allege that the contractor, Lyons, had so performed the contract that, but for the order, Lyons could have recovered the contract price from the defendant. Goldengay v. Smith (N. J. Ch.; Magle, Ch.; 1901) 50 Atl. 456. The present bill was thereupon filed, alleging, in the manner above stated, the performance by the contractor, and a demurrer is again interposed. This is a general demurrer for want of equity, and at the hearing the objection raised is that the allegation of performance of the contract is not sufficient, because it is made by a general allegation of performance, and that, in order to show the liability of defendant to Lyons under the contract, there should be specific averments of performance of each of the conditions precedent to payment appearing in the contract, as set out in the bill. These conditions relate to the manner of the erection, and are, as set out in the bill, that Lyons "should well and sufficiently erect two new buildings on the land of said Smith * * * agreeably to the drawings and specifications made by Romolo Botelli, architect, and also find and provide such good, proper, and sufficient materials of all kinds whatsoever as should be proper and sufficient for the completing and furnishing of all the carpenter and other works of said buildings mentioned in the carpenter's specifications annexed to said written contract and forming part thereof." In pleadings at common law setting up performance it was necessary that the averments of performance should be specific, following the language or legal effect of the conditions, and extending to all the conditions precedent. But by the act of March 17, 1855, to simplify the pleadings and practice at law (P. L. 1855, p. 295, § 25), this rule was changed, and now plaintiff or defendant in any action at law may aver performance of conditions precedent generally, and the opposite party shall not deny such averment generally, but shall specify in his pleading the condition precedent the performance of which he intends to contest. Prac. Act, § 126 (Gen. St. p. 2554); Vreeland v. Beekman (Sup. Ct. 1872) 36 N. J. Law, 13. The rule as to the certainty required in bills in equity is generally more liberal than that applied in pleadings at law, and, in view of the long-continued prevalence in the courts of law of the rule allowing averments of performance generally, it should not be disapproved in courts of equity merely because the legal rule is, in its origin, based on statute. The recognition of this general method of pleadings is a proper and reasonable application of the general rule as to bills in equity that certainty to a general intent is all that is required. Story, Eq. PI. § 253; 1 Daniel, Ch. Prac. (0th Am. Ed.) 368; Randolph v. Daly (Green, Ch.; 1863) 16 N. J. Eq. 313, 318. If, therefore, the frame of the bill, in averring performance generally, bad been specially objected to, I should be inclined to overrule it; but the present demurrer is general, without any specifications of formal objection, and it is the rule that on such demurrer no defects of form can be considered. Wilson v. Hill (McGill, Ch.; 1890) 46 N. J. Eq. 367, 372, 19 Atl. 1097, and cases cited. Objections of form for want of certainty come within the operation of rule 209, requiring specifications; and, irrespective of this rule, objections for defect of form, in the want of due certainty, required special demurrers. Story, Eq. PI. § 528. The manner of averring performance of conditions precedent, and whether the averment of performance shall be general or special, is, in most cases, if not in all, manifestly a matter of form in the procedure leading up to the contested issues, and the statute above referred to evidently proceeds on this basis. The present case is within the equitable principle of the statute, and peculiarly so, because the complainant, not being himself a party to the contract or its performance, cannot be supposed to have within his own knowledge such information as to the performance as is possessed by the defendant, and he is therefore peculiarly entitled to aver performance generally, leaving it for the defendant to point out the particulars in which performance has not been made.
The demurrer is overruled, with costs.