Austin a. v. Walker a., 26 N.H. 456

Eastman, J. The court have heretofore had occasion to give a construction to the contract upon which this action is founded. Watson v. Walker, 3 Foster’s Rep. 471. At the December term, 1851, we held that it was incumbent on the plaintiffs to give notice to the defendants that they had failed to effect sales to the amount of $1,000 and the expenses of the agency, before an action could be sustained on the agreement.

We also held that, upon notice being given, the obligation of the defendants was complete to repay the money or convey one half of the right in the United States; and that upon the obligation becoming complete, no formal demand or special request was necessary to be shown to sustain the action. The reasons for this decision were then gone into somewhat fully, and it is unnecessary to repeat them here.

It may be stated, in general terms, however, that the doctrine was laid down that wherever the fact upon which the liability of a party arises, lies peculiarly within the knowledge and privity of the plaintiff, notice thereof must be stated in the pleading to have been given to the defendant; but where the matter lies as much within the cognizance of the one party as the other, notice need not be given.

By the contract, the plaintiffs agreed and engaged, as soon-as practicable and convenient, to send an agent to Europe, for the purpose of exhibiting the invention, and of selling and disposing of the looms and the right connected therewith, and that they and their agent should make all suitable and proper efforts to do the same to the best advantage.

And the defendants agreed and promised, that in case, after using all proper and reasonable exertions to sell such right and privilege in Europe, the plaintiffs, or their agent should not be able to effect such sales to the amount of $1,000, and all the expenses of the agency, they would repay the plaintiffs said sum of $1,000, and all the reasonable expenses of the agency, or convey and assure to the plaintiffs the undivided half of the patent right within the United States.

The defendants were not to be liable until the plaintiffs had failed to effect the sales, and whether they should succeed or not, would be a matter peculiarly within the knowledge of the plaintiffs; and hence the propriety and necessity that they should make known to the defendants their want of success in effecting sales before the defendants should be chargeable.

In case the plaintiffs did not succeed in effecting sales, the defendants were to repay the §1,000 and also pay the expenses of the agency, or convey to the plaintiffs the one half of the right in the United States; and the obligation of the defendants to do this arose upon the failure to make the sales, and upon their being notified of that fact. The alternative, whether to repay the §1,000 and the expenses, or convey the one half of the right, was with the defendants.

It was at their option which to do, and no special demand or request was necessary to be made by the plaintiffs t'o sustain their action, after having given notice of their failure to effect the sales. The notice completed the obligation; and when the case was before ns in 1851, we decided that the request set forth in the plea was not material, and might be treated as surplusage. The objection, then, to the replication, that it omits to traverse the request set forth in the plea, cannot be sustained ; and the only inquiry is, whether the allegation of notice is well pleaded by the plaintiffs.

The body of a replication contains, either, first, matter of estoppel; second, a traverse, or denial of the plea; third, a confession and avoidance of it; or fourth, in case of an evasive plea, a new assignment. 1 Chitty’s PI. 602; 2 Saund. on PI. & Ev. 776. Where-a general denial is proper, the replication, in actions of contract or replevin, denies the fact, or one of the facts, alleged in the plea, in express words. But in trespass, and in actions on the case for slander, the replication frequently contains a general denial of the whole plea. 1 Chitty’s PI. 632; 2- Saund. on PI. and Ev. 776; Com. Dig.

Pleader F. 18. Here the action was founded on contract. The plea alleged that the plaintiffs did not, within a reasonable time after the making the articles of agreement, inform the defendants and make known to them that neither they nor their agent had been able to effect such sales to the amount of §1,000, and all the expenses of such agency. This was a material matter, and one of the points upon which the plaintiffs’ right of action depended. It was a denial of the fact that notice had been given of the failure to make sales; and it was necessary to be met in express terms.

And this, we think, the plaintiffs have done. .The replication avers that the plaintiffs did, within a reasonable time after the making the articles of agreement, to wit, on the first day of June, 1841, at Dover, inform the defendants and make known to them, that neither they or their agent had been able to effect such sales to the amount of $1,000, and all the expenses of such agency. The replication, therefore, contains a direct denial of the allegation in the plea, in express words. As the plea stands, it could not well do more or less without transgressing some of the rules of pleading.

The position that a reasonable time had not elapsed before the notice was given, as alleged in the replication, cannot prevail. There was sufficient time between the 19th of August and the first of June following, to make all requisite exertions to effect the sales. Judgment for plaintiffs on the demurrer.