Kelly v. Owen

1 Minor 252

Opinion

JUDGE Minor

delivered the opinion of the Court.

The 1st and 2d assignments of Error are, that there is no sufficient assumpsit laid in the first count of the declaration# and that judgment was rendered on the declaration generally when the first count was bad.

The first count sets out, that the defendant, by his written agreement by him signed, &c. promised to deliver to M‘Kinney and Owen, of which firm plaintiff is surviving partner, 17001bs. of good merchantable baled cotton, by the 20th day of November then next ensuing ; that defendant, though often requested, had not delivered the cotton, or any part thereof; by reason of which the plaintiff has sustained damages, &c. It is contended by the Counsel for the plaintiff in Error, that this count is bad for the want of the “ super se assumpsiV In the case referred to, to support this position, (cited in 1 Bacon’s Ab. 277,) when the plaintiff declared, that in consideration that he would procure J. S. to surrender a messuage, the defendant would pay £10. The declaration was held not good, super se assumpsit being omitted, and there being nothing in the declaration which imports a promise or contract. From the reason assigned, it seems that the declaration would have been good had it contained an averment that the plaintiff did procure J. S. to surrender the messuage ; although it had omitted to repeat, that by reason of the surrender the deféndant became liable to pay, and pj-omised to pay the £10. The first and plain principles of pleading require that the declaration should contain a statement of all the facts necessary in point of law to sustain the action, and nothing more. That these facts should be set out with such precisión, certainty, and clearness, that the defendant, knowing what he has to answer, may be able to plead a distinct and unequivocal plea. That the Juxy may be enabled to give a complete verdict upon the issue, and the Court, consistently with the rules of law, may give a eé'rtain and distinct judgment on the premises. (1 Ch. Pl. 248, 255, and the cases there cited.) In this case it seems clear that an averment that the defendant by reason of having failed to deliver the cotton became liable to pay, and being so liable, promised to pay its value, would not have disclosed any other fact than had already been set forth, or have better enabled the defendant to plead, the Jury to find a verdict, or the Court to render judgment. When thé declaration has already shewn a contract and legal liability, as it is not necessary to prove, it seems unnecessary and useless to allege a further promise. (See Chitty on Bills, 368.) In the precedents of declarations in assumpsit, on contracts •other than for payment of money, as for not delivering goods sold, not delivering a bill of exchange, not performing works, or on policies of insurance, wager, warranty, &c. it is usual to set out the contract and breach of it, without incumbering the Record with a further averment of liability, which is deducible, and implied from the facts already stated. (2 Chitty’s Pl. 98, 85, &c. 3 Ch. Pl. 190, 191, &c.)

The 1st count appears to be sufficient, and the 1st and 2d assignments of Error are not sustained.

The 3d assignment is, that the Court ought not to have sustained the motion for judgment for want of a plea.

In the Record, after the declaration are the words “ Payment and set off,” which appear tó have been signed by defendant's Counsel. If these words had by consent been received as pleas and issues taken thereon, we should have regarded them as such.

In the case cited by the Counsel for plaintiff in Error, 5 Term, 152, the defendant, in an action of slander, delivered a plea in which he attempted to justify, but it was not strictly speaking, a justification ; it was held, that as the plea went to the substance of the complaint, though not formal and good, it could not be treated as a nullity. In the case before us, in the words -inserted in the Record after the declaration, there is no averment denying the plaintiff’s right of -action, or indeed any averment whatever. They cannot be regarded as pleas, and the plain tiff was not bound to treat them as such. In another case cited by the Counsel for plaintiff in Error, 3 John. R. 541, the Supreme Court of Nem-York says, that where the plea is bad or frivolous the plaintiff may treat it as a nullity, and enter a default; and that a motion for judgment by default is unnecessary. In this State, the judgment by default to authorize execution must be rendered by the Court. It here appears to have been regularly taken.

The 5th assignment is, that the verdict was rendered as on the plea of not guilty. After the judgment by default, it was necessary that the damages should be enquired of and assessed by a Jury. This has been done. That part of the verdict which finds the defendant “ guilty, in manner and form as the plaintiff hath against him complained,” could not have had any effect on the judgment of the Circuit Court or the rights of the parties. It was a defect of form which is cured by the Statute of jeofails. The judgment of the Court below must be affirmed. In this opinion the Court are unanimous.