#### Daniel Richards and Jehaziel Sherman, Jr. *versus*John Maley Cuyler and Frederick Cuyler.

*A*plea, which amounts to the general issue, is bad on special demurrer, and it will amount to the general issue, when it shows a state of facts, from which it appears, that the plaintiff at no time had any cause of action. But when a plea is overruled, as equivalent to the general issue, it must be very clear that it is so.

This cause came before the Court "upon special demurrers to two specialjpleas, interposed by the defendants.

The declaration was in assumpsit, and contained none but the - common counts, for money paid, money lent and advanced, money had and received, &c., and the plaintiffs claimed $800.

The defendants, besides the general issue, pleaded two special pleas. In their first, they alleged, that before the making of the promises in the declaration mentioned, the plaintiffs ^undertook and promised *the defendants,*that if they (the defendants) would undertake to deliver to the plaintiffs, in the City of New-York, on or before the first day of November, in the year_1828, a quantity of goods and merchandise, of the value of $1000, to be sold by the plaintiffs for the defendants, on commission, for a certain profit, that they (the plaintiffs) would *advance*and pay to the de*202fendants certain sums of money in consideration thereof, and that they (the plaintiffs) would sell the said goods, and out of the proceeds thereof, retain the sums of money to be advanced, and would not require the defendants to repay the same,- but would pay the balance of such proceeds to the defendants, when the sales were completed.

The plea then averred, that the -defendants did undertake to deliver *the said*goods to the plaintiffs at the time and place aforesaid, and that *the*plaintiffs, in consideration thereof, advanced and paid to the defendants, on the first day of November, 1828, “cer- “ tain small sums of money, amounting- in the whole to the sum “ of' two hundred dollars,” which were' the same sums demanded in the declaration. The plea then further averred, that the defendants, in consideration of the sums so advanced by the plaintiffs, and of their said promise and undertaking, did afterwards, on the same first day of November, deliver to the plaintiffs at New-York, the goods and merchandise abovementioued, which the plaintiffs accepted, and still held, the same being unsold.” These allegations were concluded by a verification ; and the plea then proceeded as follows, viz : *“*And as to all the said several promises and un- “ dertakings, in the said declaration mentioned, except as to the *“*said sum of two hundred dollars, so advanced and paid by the “ said plaintiffs to the said defendants, parcel of the several sums “ of money mentioned in the said declaration, these defendants “ say, they did not undertake and promise in manner and form as “ the said plaintiffs have above thereof declared against them,” wherefore they prayed judgment, &c.

The second special plea was substantially like the first, but differed from it, by alleging the delivery of the goods to have been on the *second*day of November, (the day after that, on which they were, by the terms of the agreement, to have been delivered,) but that the plaintiffs accepted the same under the agreement, and sold them on the *same*day for one thousand, dollars, which they received, and still held, &c. This plea concluded in all respects like the other, and denied the receipt of any sums beyond the two hundred dollars.

*203To these pleas the plaintiffs demurred, and for cause, alleged, 1. That the pleas amounted to the general issue ; and secondly, that they were double, tendering several issues as to the alleged delivery of the goods, their sale, &c.

The cause was argued by *Mr. David Graham,*for the plaintiffs, and *Mr. John Wallis,*for the defendants.

As to the first cause of demurrer, Mr. Graham cited *Archb. Pl.*194. 10 *John. Rep.*289. *Stephens on Plead.*412. 9 *Cranch.*30. As to the second cause, he cited 6 *John. Rep.*63. 18 *Ib.*28.

*Mr. Wallis*cited *Ld. Raym.*787. 217. 1 *Chit.*475.

Oakley J.

This case comes before the Court on separate demurrers to the 2d and 3d pleas, and the special cause of demurrer assigned is, that the pleas amount to the general issue.

The rule on this subject is, that a plea, which amounts to the general issue is bad on special demurrer, *[Kennedy v. Strong, 10 J. R.*289 ;] and in the application of this rule, it is held, perhaps with some exceptions, that a special plea amounts to the general issue, when it shows a state of facts, from which it clearly appears, that the plaintiff, at no time, had any cause of action. *[Brown v. Cornish, Ld. Raym.*217. *Vanhatton v. Morse, Lord Raym.*787.]

The action, in this case, is assumpsit for money had and received, &c. The 2d plea states, that in consideration, that the defendants would deliver to the plaintiffs, on or before the first day of November, a quantify of goods, &c., to be sold by the plaintiffs on commission, they, the plaintiffs, promised to advance to the defendants certain sums of money thereon, to sell the goods, and retain the said advances out of the proceeds, and to pay over the balance; and that the defendants should not be required to repay the advances in any other manner. The plea-, then avers a delivery of the goods to the plaintiffs, and an advance by them to the amount of $2000; and it further avers, that the plaintiffs received the goods, and have not yet sold them.

*204The 3d plea differs from the second, in stating that the goods were delivered to the .plaintiffs on the day after the advances in money were made to the defendants ; but it is averred, that the goods were accepted under the agreement, and before the commencement of the suit. The plea also avers, that the plaintiffs sold the goods for a larger amount than that advanced, and that they still retain the money.

The facts set forth in these pleas do not *necessarily*show, that the plaintiffs had not, at any time, a cause of action, arising out of the advances of the money in question; There may have been some breach of the special agreement, or some abandonment of it by the parties, subsequent to the advances, or to the sale of the property by the defendant, from which a right may have accrued to the plaintiffs, to sue for the money advanced, in this action. Such a state of the case may be disclosed in the replication; and it is sufficient to show, that these pleas do not come clearly within the rule above laid down. When a plea is overruled as equivalent to the general issue, it must be very clear that it is so.

*Judgment for the defendants on the demurrers.*

[Wm. H. Munn, *Att’y for the plffs.*John Wallis, *Att’y for the defts.]*