Goodrich v. Stanton

42 A. 74, 71 Conn. 418, 1899 Conn. LEXIS 11

• Court: Supreme Court of Connecticut
• Decided: January 4, 1899
• Status: Published

Opinion

Baldwin, J.

This action was brought upon a complaint which consisted simply of the common counts, claiming $1,500 damages. Before the cause could be in a condition to justify proceeding to judgment, it was necessary for the plaintiff to file a bill of particulars, or such further statement by way either of a substituted complaint or of amendment, as might he requisite to show the true nature of his demand. Practice Book, p. 12, § 1. He waited nearly five years, and then filed what he styled a “ Supplemental Complaint,” consisting of a “ second count ” and a “ third count,” and showing that this demand was one against the indorser of two promissory notes, one .of which, declared on in the second count, had matured before, and the other, which formed the .subject of the third count, after the commencement of the suit.

The common counts can only be used when one or more of them furnish “ an appropriate general statement of the cause of action.” Practice Book, p. 12, §1. None of them are applicable to the liability of an indorser. No objection, however, was made to the filing of the so-called supplemental complaint. It was treated by the parties and by the Superior Court as a substituted complaint within the rule, and a demurrer filed to it, which was sustained. What was styled a “ Substituted Supplemental Complaint,” setting forth a “ second count,” in which both notes were declared on as the matter of recovery, was then filed. This took the place of the complaint for which it was substituted, and that dropped out of the case. It remained on the files, and constituted part of the history of the cause, but could furnish no basis for a future judgment; nor could any previous ruling upon it be made a subject of appeal.

Another demurrer was filed and sustained to the “ substituted supplemental complaint,” whereupon four additional counts were filed. Such an amendment of the complaint should not have been allowed. A single transaction, resulting in the indorsement of two notes, was thus made the subject of six counts, each of which sets it out in a slightly different way, with the aim of giving it a different legal aspect.

It is the duty of a plaintiff to narrate the facts which constitute his case, according to the truth, and leave it to the court to draw the proper legal inferences. Tins’ narration should be confined to a single count, unless the transaction be one from winch two separate and distinct causes of action arise. Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 559, 563, 564. In the case at bar, two such causes of action were set up, and only two. Each note necessarily furnished a different one, for each is an independent obligation, and the second did not mature until after the suit was instituted.

The addition to each count of a separate claim for damages was also improper. The place, and the only place, for the claim for relief is at the foot of the complaint; and the claim there stated, if there are several counts, covers all. Baxter v. Camp, 71 Conn. 245.

The second count in the “substituted supplemental complaint ” set forth a sufficient cause of action on the first note. The demurrer to it, for embracing also the cause of action on the second note, was well taken. General Statutes, § 1050, which provides that in any action for damages, founded in contract, “ the plaintiff may offer evidence of any damages that may have accrued from the same cause of action subsequent to the bringing of the suit, provided he shall have given reasonable notice to the defendant of the damages so designed to be proved,” has no application to this case. The causes of action on each note were necessarily separate and distinct. That on the second note did not come into existence until after the suit on the other was brought; and where only legal relief is sought, no such new ground of action can be introduced into a complaint, even though it sprang out of the transaction upon which the original proceeding was based. The rule of court under the Practice Act, that “supplemental pleadings, showing matters arising since the original pleading, may be filed by either party ” (Practice Book, p. 15, § 8), must be read in view of General Statutes, § 1028, that complaints may be amended by the insertion of new counts “ which might have been originally inserted therein.” A plaintiff at law must have a case before he comes to court; though, if he states it insufficiently, in a complaint otherwise drawn in a form which is'permissible, he may afterwards correct the error. The bill of exceptions allowed in favor of the defendant upon the overruling of the demurrer for misjoinder, was waived in the argument before us; but we deem it proper to notice the error, lest, were it passed over in silence, it might be supposed to have received the sanction of this court.

So far as concerns the averments in the second count, relating to the first note, they state that the defendant indorsed it twice on different occasions, the first time by the name of Albert Stanton, this being a restricted indorsement, and the second by his full and proper name, Albert N. Stanton; this indorsement being an unrestricted one, so made to induce ie plaintiff to deliver to him the yacht that had been sold, delivery of which had been refused on tender of the notes bearing the first form of indorsement, upon the ground that, under the contract of sale, the words “ without recourse ” could not be added.

This account of the transaction is not inconsistent with the writings on the back of the note. So far as appears upon their face, they may have been made at the same time or at different times, on the same consideration or on different considerations, as a single act or as two acts. The plaintiff alleges that the yacht was sold for the two notes in question, to be delivered to him “ with the defendant’s indorsement thereon,” and that the name “ Albert N. Stanton ” was written, upon his demand, on a day subsequent to that when the name “ Albert Stanton ” was signed to the restricted indorsement, and as constituting a separate and distinct agreement, of a totally different character. These were material averments, and the demurrer admitted their truth. He who promises to make a payment by the note of a third party drawn to his own order and indorsed by him, is prima fade bound to put on it an unrestricted indorsement. The forms given in the Practice Book for complaints against indorsers, allege simply that the defendant “indorsed to the plaintiff” the bill or note. Forms 46 to 50; cf. 1 Saunders on Pleading and Evidence, *269; 2 Swift’s Digest, *509. The agreement declared on imports a duty to indorse in the ordinary manner, that is so as both to transfer title, and to assume a liability to pay if the maker does not, in case of due demand and notice. Clark v. Sigourney, 17 Conn. 511, 519. The note being drawn in favor of the defendant by the name of Albert Stanton, when it should have described him as Albert N. Stanton, there would be nothing unusual in his indorsing it with either or with each name, and the writings on the back of the note might, if unexplained, be read as constituting a single and qualified indorsement. But these writings would express the meaning of the parties with equal precision, if, after the completion of a qualified indorsement signed by the defendant by the name given him in the note, he had put his proper name upon it, as a distinct and separate act, in order to create the unqualified obligation of an ordinary indorser.

To show which of these two constructions ought to be placed upon the indorsements, parol evidence would be legitimate to establish the facts by which that would be determined. The plaintiff properly declared on these facts, in his second count, and the demurrer to it, which was mainly predicated on the ground that evidence of such facts dehors the writings could not be introduced, should have been overruled.

As a sufficient cause of action on the first note was set up in the second count, it is unnecessary to consider whether those afterwards added by way of amendment were properly held to be demurrable.

There is error.

In this opinion the other judges concurred.