Chandler & Taylor Co. v. Norwood

14 App. D.C. 357, 1899 U.S. App. LEXIS 3564

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 28, 1899
• Docket: No. 869
• Status: Published

Opinion

Mr. Justice Morris

delivered the opinion of the Court:

1. The declaration is undoubtedly defective, and a demurrer to it for such defect might well have been sustained, with the right reserved to the plaintiff to amend. A declaration should state specifically the amount claimed to be due, as well as the facts out of which the claim arises. This is required by the rules of the court below, and it is a reasonable requirement for obvious reasons in all declarations. Indeed, it may be questioned whether in some suits, notably those for torts, an omission to state the amount of damage, or the amount claimed as compensation for the alleged injury, would not be fatal under any circumstances and at all stages of a cause. The mere allegation of a trespass committed, without any averment of damage thereby done or of claim of compensation for injury suffered, is scarcely sufficient to justify remedial action by a court of law.

Here, however, we have not a case of tort, nor one of unliquidated damages, nor one wherein the amount of claim is better known to the plaintiff than to the defendants. The suit is upon a contract; and the contract is the ordinary and universally known contract of a promissory note, which usually fixes its own limitations and carries its own claim with it. And the question is, whether, in such a case as this, a declaration which sufficiently alleges the execution of the contract and the failure of the defendants to perform . it, but which fails to state formally the amount claimed by the plaintiff on account of such failure, is so substantially and fatally defective as that even after verdict rendered a motion in arrest of judgment may properly be sustained.

It is conceded, as it must be conceded under the law, that, if the defect be merely formal, it is cured by the verdict and by the liberal terms of our Statute of Jeofails, the 32d section of the Act of Congress of September 24, 1789, Ch. 20, which provides that “ no > summons, writ, declaration, return, process, judgment, or other proceedings in civil causes, in any court of the United States, shall be abated, arrested, quashed, or reversed for any defect or want of form; hut such court shall proceed and give judgment according as the right of the cause and matter in law shall appear to it, without regarding any such defect or want of form, except those which, in cases of demurrer, the party demurring specially sets down, together with his'demurrer, as the cause thereof; and such court shall amend every such defect and want of form, other than those which the party demurring so expresses; and may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall, in its direction and by its rules, prescribe.” The contention is that the defect is substantial, and not merely formal.

The rule of the common law was and is, that “ where the plaintiff has stated his title or ground of action' defectively or inaccurately, since to entitle him to recover, all circumstances necessary in form or substance to complete the title so imperfectly stated must be proved at the trial, it is a fair presumption after a verdict that they were proved; but that where the plaintiff totally omits to state his title or cause of action, it need not be proved at the trial, and therefore there is'no room for presumption” (Rushton v. Aspinale, 2 Wilson, 683; 1 Sellons’ Practice, 499; Poe’s Pleading and Practice, Sec. 753); or as it is otherwise stated, “the distinction was simply one between a title or ground of action defectively or' inaccurately stated, and an omission to state a title or cause of action at all.” Poe’s Pleading and Practice, Vol. 1, Sec. 753. In the former case all defects are cured by verdict; in the latter case, they are not so cured.

The question then is, whether the plaintiff has here stated á cause of action; and the answer to the question can not be uncertain. The declaration states a promise for a valuable consideration; in other words, a good and valid contract, and the non-performance of that promise or contract by the defendants. This is a good and sufficient cause of action. The amount of damage from the breach of contract may be greater or less; but the cause or. ground of action is independent of the matter of the amount of damage. From every breach of contract the law will imply at least nominal damages ; but it is the breach of contract, not the amount of damage sustained, and even though no actual or positive damage has been sustained, which gives the ground of action.

Especially is this the case in the matter of promissory notes, bills of exchange, and the like, in which the very statement of the cause of action — namely, the promise to pay a certain specified sum of money at a specified time and the failure to pay that sum or any part thereof — contains in itself the statement of the .amount of damage. For the amount of the damage is necessarily the amount of the note or bill, unless there have been payments on account of it; and even this exception can not be availed of after verdict, since, by the production of the note or bill at the trial and by the testimony in regard to it, all payments on account of it, if any there were, must have been shown. It will be presumed after the verdict, upon a motion to arrest the judgment, that at the trial the execution of the note and the failure to pay it at maturity according to its terms have been fully proved, and that the amount of the damages given by the verdict is fully sustained by that proof. For, after all, it must be remembered that, while damage should be alleged and specifically stated in a declaration, if a demurrer would be avoided, the matter of actual damage and the amount of it are always matter of proof at the trial, and the statement of such amount in a declaration has no binding force other than fixing a limit beyond which a plaintiff may not recover. And we know that, in suits upon promissory notes and bills of exchange, and other contracts in which the damages aré specifically and distinctly liquidated, it is not necessary for a plaintiff in the first instance to prove any actual damage. The prima facie proof required from the plaintiff is simply that of the execution and non-payment of the obligation, with the superadded proof of notice in suits against endorsers or others similarly situated; and thereupon, in the absence of other proof, the party is entitled to a verdict and judgment for the amount of the obligation. If the allegation of damage or of a specific amount of claim were an essential element of declarations in such cases, it would follow, in general, that the allegation should be proved. The absence of the necessity of proof tends to show that there is no absolute necessity for the allegation. It is very true that this rule is now subject to exceptions; but we think that the exceptions are simply the dictate of convenience in special cases.

It seems to us that the case of the Bank of the Metropolis v. Guttschlick, 14 Peters, 19, 26, fully sustains the rule which we have stated, and is a controlling authority for our conclusion. In that case there was a contract for the sale and purchase of land. The plaintiff in the suit, who was the purchaser of the land, had contracted to pay part of the purchase money in cash and to give his promissory note for the residue; and upon the payment of the promissory note he was to receive from the defendant a deed of the property in fee simple. The cash was paid and the promissory note was given, and in due time the latter was paid; but for some reason the defendant failed or refused to execute the stipulated conveyance. Thereupon the purchaser brought suit. In his declaration there were four counts. Throe of these alleged in different ways the contract and the breach of it; but alleged no damage therefrom to the plaintiff, and claimed no amount as such, damage. They showed, however, the amount of the purchase money paid for the land. The fourth count was for money had and received, claimed a specific amount as damages’ and seems to have been regular in every respect. There was a trial and verdict for the plaintiff for the amount of the purchase money; arid thereupon judgment. At the trial the defendant asked for an instruction, which the court refused to give, to the effect that the plaintiff was not entitled to recover on any of the counts of the declaration. Upon appeal to the Supreme Court of the United States, the latter tribunal, with reference to the objection that the three special counts of the declaration had no formal conclusion and no specific claim for any amount of damage, said:

“There is certainly no formal conclusion to either of these counts. Each of them, after alleging the breach, terminates with the words, ‘whereby, etc.’ Whether counts thus concluding would have been sufficient upon a special demurrer in the court below it is not necessary to decide; because we are clearly of opinion that the 3 2d section of the Judiciary Act would cure the defect, if it were admitted to have been one.”

The case of the Bank of the Metropolis v. Guttschlick is certainly a less forcible case than that now before us for the application of the Statute of Jeofails, the 32d section of the Judiciary Act. There the suit was not for the breach of any contract for the payment of a specific sum of money; and the amount of the damage sustained by the plaintiff could only he inferred from the statement of the amount paid as the purchase money of the land, which might not necessarily have been the amount of the damage that accrued to the plaintiff. In the case before us, the statement of the contract necessarily and by its own terms fixed the amount of the damages recoverable by the plaintiff; and the absence of claim of any specific amount was greatly less important than in the case cited.

But it is argued that in the case of the Bank of the Metropolis v. Guttschlick the presence of the proper concluding clause in the fourth count of the declaration had reference back to the other counts, and that therefore these other counts were not defective, and the case is no precedent for the question now. before us. But the decision of the Supreme Court in that case clearly is not based upon any such theory as that | here indicated. If it was supposed that the concluding clause of the fourth count had reference back to the other counts, and validated them, it would have been easy to say so, and it would have been unnecessary to appeal to the32d section of the Judiciary Act; for there would then have been a perfect declaration in the case. The court did not seem to think it necessary even to appeal to the provision of the Judiciary Act in order to reinforce the counts alleged to be defective; for it evidently proceeded upon the theory of the common law, as already stated, that whatever defect may have been in those counts, such defect was cured by the verdict.

2. Another reason, however, is suggested in support of the motion in arrest of judgment in this case. This is that the two- counts of the declaration are claimed ■ to be inconsistent with each other, and therefore that no general verdict can be sustained, and no judgment can be supported which is based on such a verdict. The supposed inconsistency in the counts consists in the assumption that in the first count the defendants are sued as joint makers, or rather as the several co-makers of the promissory note in suit, and that in the second count they are sued as endorsers; and that the position of maker and endorser is inconsistent. But, apart from the fact that there are cases- where the same person is both maker and endorser of negotiable paper, the counts in the present case are not, in our opinion, inconsistent, and the appellees are not sued in any inconsistent character.

The appellees in this case are endorsers in the literal sense of that term, inasmuch as their names are written on the back of the paper; but it does not follow that they are endorsers in the technical sense, with the rights and the liabilities incident to ordinary endorsers of mercantile instruments of writing. Their names are written before those of the payees, and they executed the paper before its delivery and for the express purpose of enabling it to be negotiated. Now, it is well-settled law in this jurisdiction that persons who thus execute mercantile paper are not endorsers in the technical sense, but presumably joint makers or sureties, although testimony is admissible to show that they signed as guarantors or technical endorsers. Rey v. Simpson, 22 How. 341; Good v. Martin, 95 U. S. 91. This being so, it follows that there is no necessary inconsistency between the two counts of the declaration, since the first count charges the defendants as joint makers, and the second count alleges the execution of the paper by them in such manner as that the law implies, in the absence of proof to the contrary, that they were joint makers. The argument, therefore, which is based upon the supposed inconsistency of the two counts of the declaration wholly fails.

From what we have said, it follows, in our opinion, that there was no good and sufficient ground in law to arrest the judgment in this case, and that for that reason the order of the Supreme Court of the District of Columbia in the premises, whereby the judgment was arrested, must be reversed, with costs. The cause will be remanded to that court, with directions to overrule the motion in arrest of judgment, and to enter judgment upon the verdict and in accordance with such verdict.. And it is so ordered.