SAMUEL B. COOPER, Plaintiff in Error, vs. WILLIAM A. BLOOD, Defendant in Error, 2 Wis. 62

By the Court, Smith, X The declaration in this case is in the common counts, with a copy of the note endorsed upon it, with the usual notice, and a statement that the suit is brought for no other cause of action. The copy of the note is as follows : “ For value received we and severally promise to pay Wib liam A. Blood, or bearer, four hundred dollars, one year from date, with interest at twenty-five per cent. until Oct. 13, 1849. (Signed,) Samuel B. Coopek. Bickhell & Co. O. P. BlOKMELIi.” The defendant, Cooper, made default. The defendants Otis P.

Bicknell, Edwin Bicknell and Charles it Bicknell pleaded the general issue of non assumpsit, and also a special plea, avering that each and all of . the several promises in the declaration mentioned, were made as sureties for Cooper, and that said plaintiff did, at Beloit, on the 26th day of June, 1851, agree with the said Cooper, for a valuable consideration, to give him, the said Cooper, a further day of payment on each and every of the said promises in the declaration mentioned, to-wit: one year from the 26th day of June, 1851, and that he would not sue or collect any of the said several promises mentioned in the declaration, for and until one year from the day last aforesaid, without the knowledge or consent of the said defendants.

To this plea the plaintiff replied that he never made an agreement with Samuel B. Cooper, one of the defendants, extending the time of payment of the note in the said declaration mentioned, or any part thereof, concluding to the country. The defendants demurred to this replication, assigning several causes of demurrer, the most important of which was, that the replication was a departure from the declaration. The demurrer was overruled, and the issue of fact was tried by the court.

On the trial, the plaintiff introduced the note in evidence, and a witness sworn for the plaintiff proved the amount of the note, computing the interest at twenty-five per cent., from Oct. 18, 1849, at (deducting endorsements) $495.90. A witness was then called to prove the partnership of Edwin Bicknell and Charles H.

Bicknell, to whom the following question was put by the plaintiff below: “ Have you ever seen their advertisements in print, advertising a partnership between them ? ” The question was objected to by the defendants, but admitted by the court, and exceptions taken, and the answer given in the affirmative. The defendants contended that there was no testimony tending to show any promise by Charles H. and Edwin Bicknell, and that it did not appear that’ they were partners when the note was made.

Section 10, of

chapter 93, of the Revised Statutes, provides, that in all actions on bills of exchange or promissory notes, the plaintiff may declare upon the money counts alone, and that any such bill or note may be given in evidence under the money counts in all cases where a coj>y of the bill or note shall have been served with the declaration.

In the case before us, the plaintiff adopted this mode of proceeding, instead of inserting a special count upon the note; and it is contended by the plaintiff in-error that the copy of the note thus given formed no part of the declaration, and that when the plaintiff replied that he had never extended the time of payment of the note, he departed from the original cause of action set out in his declaration.

This provision of the statute is an innovation upon the common law rules of pleading, and may easily lead to confusion, when the defence may require spe-°*a^ pleac^u8’- The plaintiff is permitted to set out in Ms declaration a distinct cause of action in each of the money counts, and then to inform the defendant pe pas jn fact no cause of action upon either of them, hut that his sole cause of action is upon a promissory note, a copy of which he serves with the declaration. It may well he asked, what rational purpose does the declaration in such cases answer ?

The legal function of the declaration is to inform the defendant of the matter of complaint against him. Yet the statute, in such cases, strips the declaration of this function, and transfers it to the copy of the note served therewith. It is the copy of the note with the notice which informs the defendant of the cause of action.

In view of the office which the copy is made to perform, and of the entire inadequacy of the declaration in the common money counts, for the purpose of the suit, without the service of such copy, it seems necessarily to follow that the note or copy must, in These cases, be taken as a part of the declaration, and as indicating the carise of action. To hold otherwise, would be to deprive the defendant of the power to plead any defence to the note; His plea to the common counts would be no answer to the note, and his plea to the note would be no answer to the declaration. Such an anomoly cannot be tolerated.

We think therefore that the demurrer to the plaintiff’s replication was not well taken. We have looked into the anonymous case in Wendell, (19 Wend. 226,) cited by the counsel for the plaintiff in error. Tested by the rules and principles .of the common law in relation to pleading, the conclusions of the court in that case are doubtless correct in theory, but it is believed they cannot avail in practice. The change wrought by the statute is purely of a practical character, and having- the force of law, the staid philosophy of the common law must yield to the progressive tendency of legislation.

Again, it is urged that the court erred in admitting the question put to the witness, in order to prove the partnership of Edwin and Charles H. Bicknell. Of this there can be no doubt. The question was improper, and the court ought to have sustained the objection of the defendants. But though the court erred in that respect, the error was immaterial. The partnership was sufficiently averred in the declaration, and the time was sufficiently indicated. The averment of partnership had reference as well to the time of the making of the note as to the time of the promises laid in the declaration.

The partnership not having been denied by the oath of the parties defendant, did not require proof' and we think that the error of the court in regard to the admission of evidence to prove it, was immaterial, as it did not tend to injure the defendants, or affect their legal liability in any manner. We have had difficulty in arriving at a proper determination in regard to the construction to be given to the note which is the cause of action in this case.

Probably it is not difficult to conjecture what was intended by the parties, but it cannot be said that such intention can be satisfactorily ascertained by an inspection of the instrument itself. It was undoubtedly competent for the plaintiff below' to have shown by proof when the note was actually delivered, and thus to have supplied the omission of the date ; or in other words, have shown when the instrument had an operative existence. But no such proof was offered.

The phrase “ with interest at twen. ty-five peí’ cent, until Oct. 13,1849,” without any date, leaves the special contract in regard to interest, in our judgment, inoperative. If we take “Oct. 13, 1849,” as the date, then we have no time fixed, or capable of being fixed, until which the note shall draw interest at twenty-five per cent. But, taking the phrase “„Oct. 13,1849,” as the date, and rejecting the phrase, “ with interest at the rate of twenty-five per cent, until,” as void for uncertainty, we then have a valid contract to pay $400 one year from the date, Oct. 13,1849.

In this view, the plaintiff would be entitled to recover $400 and interest at the legal rate, 7 per cent., after the 13th October, 1850. On the whole, we have concluded to permit the defendant in error to enter a o,emittitW‘ for the excess over the amount of the note, (after deducting the endorsement,) with interest at 7 per cent, from Oct. 13, 1850 ; or, if he declines this, to reverse the judgment, and leave the parties to their proofs and rights as they may make and establish them by further proceedings.