Lowe v. Nelson

7 P.R. Fed. 119

Opinion

HamiltoN, Judge,

delivered tbe following opinion:

Tbe amended complaint in tbis suit was filed May 11, 1914, and on tbe 20tb day of tbe same month a motion was filed by tbe defendants to strike tbe verification as insufficient, and a demurrer was also filed setting up several alleged defects.

1. Tbe motion to strike alleges that tbe plaintiff does not state tbat tbe facts of tbe complaint are true of bis own knowl-elge, and does not state tbe residence, business, or age of tbe affiant. Tbe affidavit being made by tbe plaintiff bimself, tbe only error necessary to be considered is tbe question of knowledge. Section 118 of tbe Code of Civil Procedure of Porto Rico requires tbat “in all cases of verification of a pleading, tbe affidavit of tbe party must state tbat same is true of bis own knowledge, except as to the matters which are therein stated to be on bis information or belief, and as to these matters, tbat be believes it to be true.” Tbe affidavit annexed to tbe complaint is by tbe plaintiff, and says tbat “I have read tbe foregoing complaint and know tbe contents thereof, and tbe same is true as I verily believe.” Tbis cannot be said to be an oath tbat tbe complaint is true of tbe complainant’s own •knowledge, quite apart from tbe question of whether anything is stated on information or belief. Tbe motion to strike, therefore, is well taken.

2. Tbe first ground of demurrer is tbat there is what is called a misjoinder of parties defendant in tbat tbe suit is brought against two defendants when in fact tbe claim is separately against each defendant. Tbe complaint itself at tbe end “prays judgment against tbe defendants not jointly, but severally, pro rata as their liability may appear.” On tbe face of it, therefore, this is not a joint, bnt is a several, claim. The rule is, as to contracts, that if the claim is joint and several, all may be joined or each sued separately, but if it be several each defendant must be sued separately. Bouvier’s Law Diet, s. v. Parties; Birkley v. Presgrave, 1 East, 226, 6 Kevised Rep. 256. And this is not only right upon principle, but is necessary in practice. It is'not practicable to have two issues tried at one time before the same jury. If the liability of the defendants is different, which is confessedly true in this case, there will be two such issues before the jury. If there may be two, there may be a thousand, which is a reductio ad absurdum,.

Under the allegations of the complaint itself, it is unnecessary to determine whether this be a suit for damages in tort or damages for breach of contract. In either case the complaint says that the suit is on a several, and not a joint, liability, and that the recovery sought is different in the case of each defendant. The demurrer is therefore good.

3. The demurrer is not good as to the point that the damages to the Lowe corporation and to William Lowe cannot be discriminated. The allegations seem reasonably clear that Lowe suffered damage from breach of contract, even if perhaps there are unnecessary allegations as to the corporation. The latter would be surplusage, and would not be considered.

It follows, therefore, that the motion to strike should be granted, and the first ground of demurrer will be sustained.

It is so ordered.