Alden, Carlos C.

English

Yale Law School Legal Scholarship Repository

DEFENSE UNDER CODE PROCEDURE.
THE DEFENSE OF PAYMENT UNDER CODE
PROCEDURE
Inexactness in legal nomenclature proves a very fertile source
of inexactness in our jurisprudence. Looseness of general ex-
pression is a fault, but the use without discrimination of a
single word which is capable of diverse meanings is a greater
fault, for it is fraught with much more serious possibilities for
reaching mischievous results. In my opinion the continued use
of the word "payment," as defining an issue in an action, serves as
a pertinent illustration. "The law upon the subject of alleging
and proving payment is in some confusion," says Justice Vann,
of the New York Court of Appeals, in a late casel-a confusion
arising, I believe, from the use by judges of the word payment,
without reducing its application to exactness. Justice Vann's
effort at a clarification of the situation, by laying down some
general rules, proved abortive, as a majority of the court declined
to approve.
What does the issue of payment comprehend? Presupposing
that the defendant's obligation is the payment of a sum of money,
it is obvious that such a payment may have been made, (i) be-
fore the day of maturity, (2) upon the day of maturity, or (3)
at any time after maturity. The time when the payment was
actually made has an exceedingly important effect upon the
standing of the parties before the law; it is determinative of the
question whether plaintiff has sued without ever having pos-
sessed a right of action, or whether, having possessed such a
right, he has subsequently permitted it to be extinguished.
One of the few propositions in law that may be stated with-
out exception is, that the making of a contract does not of itself
give rise to a right of action. To the making of the contract
must be added its breach by one of the parties. The breach hav-
ing occurred, there is then in contemplation of law no existing
contract, but in its place, and only consequent upon its demise,
arises a right of action at law for the damages. If the parties
keep their respective promises, thus fulfilling the contract obliga-
tions, the contract is at an end, and there never can be and
there never has been a right of action existing with regard to it.
1 Conkling v. Weatherwax, 18I N. Y., 258; 73 N. E., i028.
YALE LAW JOURNAL
Should one of the parties, under such condition of an entire ful-
filment of its obligations, attempt to base a right of action upon
it, how illogical seems a judicial rule that the plaintiff may re-
cover without even essaying to combat fulfilment of the con-
tract, or in other words, without showing that he ever possessed
a right of action resting upon the defendant's broken promise-
and that the defendant cannot be heard upon the claim that he
completely discharged his contract obligation on the contract
day, unless he has presented a plea in confession and avoidance
(though he certainly cannot confess that there'has ever been a
right of action against him, and he ought not to try to avoid what
never existed in law).
Should the agreement of the parties be, for example, a present
sale and delivery of a horse by A, upon B's agreement to deliver
five sheep within two months hence, it seems plain that A's state-
ment of a cause 6f action for money damages based upon that
agreement must necessarily involve the fact that B failed to de-
liver the sheep within the contract period; and it seems equally
plain that A's proof, to entitle him to go to the jury, would have
to cover the fact of B's default. If, however, B has failed to make
delivery within the contract period, but A has accepted a later
delivery, B would have the burden (founded upon a plea proceed-
ing upon the confession of a cause of action in A, yet asserting
an avoidance of the liability because it was subsequently ex-
tinguished) of proving the tardy delivery and acceptance. I know
of no case asserting a doctrine in any wise contrary to these
propositions, provided B's promise involved the delivery of prop-
erty; but if B's promise was to pay money, numerous authorities
may be found asserting that the payment upon the contract day
may not be shown under a general denial.
The making and delivery of an instrument for the payment of
money only does not of itself confer upon the holder a right of
action. Only when the day for payment comes and passes
without such payment does such right arise. But when the day
of maturity has passed without payment, the right of action is
complete, and it is rendered no more complete by the lapse of
further time and a continuance of the maker's default; therefore,
a complaint in an action upon such an instrument may properly
DEFENSE UNDER CODE PROCEDURE.
confine its allegation of the breach to the failure to pay at ma-
turity.2 It is plainly essential that a non-payment on the contract
day be alleged. 3 The defendant's attitude in such an action
ought not to be difficult to put into pleading; if in fact he made
payment at maturity, he ought to be allowed to deny plaintiff's
allegation to the contrary and to prove such timely payment at
the trial; if he allowed the day of maturity to pass without pay-
ment, thus breaking his promise, and subsequently was per-
mitted to make tardy payment, he cannot deny what plaintiff
has charged and he must set up affirmatively the tardy pay-
ment and assume the burden of establishing it at the trial. Au-
thorities under code procedure in New York apparently (Icily
the defendant the right to show payment on the day of maturity,
unless he has interposed an affirmative plea of payment.4
Where .plaintiff charges the sale and delivery of goods to the
defendant and says nothing as to credit, the presumption is that
payment was agreed to be made on delivery. It is essential for
plaintiff to charge non-payment at the time of delivery.5 Be-
ginning with the earliest decision under code procedure, holding
that payment for the goods is not admissible under a general de-
nial, through a long line of subsequent cases applying the rule,
there is no instance where the use of the word "payment" in the
opinion discloses whether the defendant was contending that pay-
ment was made upon delivery, or subsequently. In the pioneer
case the judge writing for the court classifies the defense of pay-
ment with the defense of release, or accord and satisfaction, each
one of which proceeds upon the concession of a matured claim
subsequently extinguished.
Upon an issue so frequently presented as that of payment, there
is plain necessity for certainty. Certainty without logic to sup-
port it is not ideal, and fosters error. In the most recent discus-
sion of the question in the New York Court of Appeals,7 it was
asserted on the one side that confusion exists, on the other side
that the authorities settle the question but do so in a concededly
illogical manner. It is to be regretted, I think, that the court
2 Ahr v. Marx, 44 App. Div., 391; aff'd, 167 N. Y., 582.
3 Lent v. Mass. Railway Co., 13o N. Y., 504.
4 See cases collated in Conkling v. Weatherwax, supra.
5 Tracy v. Tracy, 59 Hun., i.
6 McKyring v. Bull, 16 N. Y., 297
7 Conkling v. Weatherwax, supra.
650 YALE LAW JOURNAL
did not unite (whether to effect certainty or overturn the para-
dox), and determine as a future rule of pleading and proof, that
where the complaint declares upon a contract for the payment of
money by defendant, plaintiff must allege and prove a breach
of the obligation, i.e., non-payment thereof when it matured,
which proof may be contested by the defendant under his general
denial-while payment after such breach may be presented in
issue by the defendant's affirmative plea of a tardy payment.
Carlos C. Alden.
Dean of the Buffalo Law School.


The Defense of Payment Under Code Procedure

ALDEN, CARLOS C.

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