Metropolis Manufacturing Co. v. Lynch

36 A. 832, 68 Conn. 459, 1896 Conn. LEXIS 52

• Court: Supreme Court of Connecticut
• Decided: December 22, 1896
• Status: Published

Opinion

Hamersley, J.

A complaint must contain “ a statement of the facts constituting the cause of action, and a demand for the relief to which he (the plaintiff) supposes himself to be entitled.” General Statutes, § 872.

In this case the facts alleged are, an agreement between the parties by which the plaintiff, a manufacturer, was to consign his goods to the defendant for sale in accordance with the terms of the agreement; the delivery to the defendant, in pursuance of that agreement, of the goods described and of the value stated ; the occurrence of the condition by which, under the agreement, the plaintiff was entitled to demand and the defendant was bound to return said goods or their proceeds ;.a.demand by the plaintiff in pursuance of the agreement and a refusal by the defendant to comply with the demand. The relief asked is a judgment for damages.

This complaint is an appropriate and, in the absence of demurrer, a sufficient statement of facts showing a breach of contract by the defendant, for which the plaintiff is entitled to the relief demanded. It appears from the finding of the trial court that an agreement, delivery and demand were proved substantially as alleged, that the demand made was not complied with, and that for this failure the defendant, in respect to a portion of the goods at least, is liable to the plaintiff in damages. Upon such a record the sentence of the law is a judgment for the plaintiff. The court, however, rendered judgment for the defendant; and it is claimed that this judgment is legal for the following reasons: The action is one of trover and has been so regarded by the plaintiff; he began the action by arresting the defendant’s body; he treated the action as one of conversion in his demurrer to the plea in abatement filed by the defendant; it is too late for the plaintiff to claim any judgment except for damages in an action of trover; and treating the complaint merely as an action of trover, the facts proved will not support a judgment for the plaintiff, although the defendant may be liable in case or assumpsit.

These reasons are insufficient. Since the abolition of the common law forms of action and pleading, the phrase “ an action of trover ” does not accurately define a cause of action. The names of the ancient forms are still used for convenience as approximately designating different causes of action for which there is now only one form; but their use is sometimes deceptive in that, while the essential elements of a cause of action as determined by principles of substantive law may be unaffected by the change in procedure, yet those insignia of a distinct cause of action which depended upon or grew out of the limitations and fictions involved in the use of prescribed forms, have lost their significance as distinguishing marks of distinct causes of action.

It is doubtful if the allegations of this complaint sufficiently state a cause of action within the range of the common law action of trover. The gist of that action was a conversion, or the unlawful exercise of dominion over goods or chattels belonging to another who is entitled to their immediate possession. There is nothing in this complaint to support such a cause of action, except the demand to comply with the terms of an agreement and the refusal to comply; even if we treat this as equivalent to that “ demand and refusal” which may be evidence of a conversion, the allegation is faulty if a statement of evidence and not of fact; and if a statement of fact, is defective because the essential facts are not fully stated. A cause of action arising from the unlawful exercise of dominion over property, cannot be properly stated without a direct allegation of the material facts which constitute the unlawful act. A demand and refusal, in connection with other facts alleged, may be sufficient to support a cause of action based on the unlawful exercise of dominion oyer the property demanded (as illustrated in Form 96 under the Practice Act) ; but it is doubtful if this complaint can fairly be said to state those facts.

If, however, the complaint can be treated as stating facts showing an unlawful exercise of dominion over the plaintiff’s property, it is only because, by force of the contract alleged, the defendant’s lawful dominion ceased the moment the demand was made, and so the refusal to deliver became both a breach of contract and an independent wrongful act. Here is a case where contract and tort, as classifying causes of action, overlap or blend, and the cause of action arising from one set of facts may theoretically be treated as sounding in contract or tort. Under the new procedure this theoretical distinction is rarely a practical one; for the complaint in such case, whichever theory is adopted, must state the same material facts and ask for the same relief. Judgment must follow proof of the facts alleged, whatever view the court may take of the classification of the cause of action; even if it should deem the proof insufficient to support the theory of tort, and the plaintiff has insisted, and insisted only, on that theory as entitling him to judgment. The views and claims of' the plaintiff, however persistently pressed, cannot alter the cause of action proved, nor control the judgment. When the complaint sets forth facts sufficient to support a cause of action, and those facts are established by the evidence to satisfaction of the trier, the court must pronounce the sentence of the law upon the facts as found. Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co., 63 Conn. 551; Thresher v. Stonington Savings Bank, 68 id. 201.

The fact that the plaintiff caused the bodj^ of the defendant to be attached in the service of the writ, is immaterial to the question of judgment. A writ of execution may be levied on the body of a debtor unless in case of statutory exemption (General Statutes, § 1179), and mesne process may be served by arrest when the body is not exempt from imprisonment on the execution in the suit (§ 893) ; the body is exempt in all actions founded on contract merely, with certain exceptions (§ 1181). In this case the complaint alleges that the defendant was “ acting in a fiduciary capacity for the plaintiff,” apparently with intention of bringing an action founded on contract within the statutory exceptions which permit an attachment of the body in such action. But the statute (§ 893) also prohibits attachment of the body, “unless each cause of action in the complaint be such that execution may issue against the body of the defendant upon a judgment founded thereon.” We doubt if an attachment in this case was proper under any correct view of the complaint; but however that may be, the right of attachment depends upon statutes regulating process, and the fact of an attachment, whether valid or not, cannot control the judgment to be rendered on the facts alleged in the complaint and proved upon the trial.

Treating the action as one of conversion in his demurrer to the plea in abatement filed by the defendant, is simply additional evidence that the plaintiff insisted on his theory classifying the action as founded on tort. However strongly a plaintiff, in such a case, may have planted himself on this theory, he is still entitled in argument to claim a judgment on the theory of contract; and if the law is so that the plaintiff is entitled, upon the facts alleged and proved, to a judgrnent, it is the duty of the court to render that judgment, although the cause of action proved should be classed as one •founded on contract, and the plaintiff has never ceased to claim that it is founded on tort. Of course, when the production of evidence or any material rights in the trial of a cause.- have been affected by pressing one theory to the abandonment of the other, different questions may arise. The only difficulty of that kind that can be suggested in this •case, arises on the assumption that the defendant’s plea in abatement was on the ground of the pendency of another suit between the same parties and for the same cause of action; that the plaintiff’s demurrer was in effect an abandonment of any cause of action founded on contract; that the judge before whom the demurrer was tried, influenced by that abandonment, sustained the demurrer which he would otherwise have overruled; that having thus saved his suit from abatement and having failed to prove a cause of action founded on tort, the plaintiff now seeks to recover judgment upon a cause of action he has thus abandoned; and that a judgment under such circumstances cannot be rendered for the plaintiff, without using the court to give effect to a fraud both upon, the defendant and the court.

It is not within the province of courts of justice to assist those who seek to violate the law, or to reap the benefits of their own fraud. It is the duty of a court to exhaust its powers to prevent a litigant from obtaining judgment through a deception practiced upon the court; and its powers for such purpose are ample. It is unnecessary to consider whether, upon the facts assumed, the proper course was to refuse to render judgment upon a cause of action alleged and proved, or to set aside the judgment on demurrer so obtained by fraud; for the assumption is not supported by the record.

The plea in abatement sets out in full the record of the pending action, by which it appears that the complaint in that action - contained several counts in the form allowed for the commencement of an action called the “common counts;” that a bill of particulars, which as to some items is apparently for a different cause of action, and as to no item is certainly for the same, had been filed, but that no one of the counts had been stricken out. Whether such a plea is, on demurrer, a sufficient statement of the pendency of a suit for the same cause of action, may be doubtful. Damon v. Denny, 54 Conn. 253, would seem to support the plea; but the question there discussed -was evidently considered a very close one, and perhaps that case ought not to be pressed as an authority, or at least not beyond the precise point decided, i. e., when the alleged pending action has been commenced with the form of complaint called the “ common counts,” and an issue of fact has been joined upon the allegations in the plea of abatement that the cause of action is the same, parol evidence that the transaction on which the second suit is based occurred before the bringing of the first suit, and is the only one which has occurred between the parties, is admissible. In the present case however, the plea in abatement does not allege that the former suit was for the same cause of action; the allegation is that the former suit was “for a cause growing out of the same continued transaction from which arose the cause set forth in said later complaint.” Among the reasons specified in the demurrer are these : “ Because it does not appear that the two causes of action arose out of the same transaction,” and “because, even if the cause of action did arise ‘ out of the same continued transaction,’ the joining of that, and the present cause of action, would be optional with the plaintiff.”

Undoubtedly a party can no more maintain two suits at the same time on one cause of action, when one suit seeks to recover a part only of the damage due, and the other to recover a different part, than when both suits seek to recover all the damages. But this plea in abatement does not claim an attempt to split a single cause of action; it assumes that there were two causes of action, aud claims that because they grew out of the same continued transaction, a judgment on the cause of action stated in the first suit must be a bar to a recovery on that stated in the second. This is not true. The plaintiff may join in one complaint several causes of action arising out of the same transaction, but he is not in all cases bound to do so. A plea in abatement must state with certainty all essential facts. For all that appears, the court may have sustained the demurrer because it did not fully appear by the plea in abatement that the two causes of action stated in the first and second suits were such that the plaintiff was legally bound to include them in one complaint. At all events, it is not clear that the court sustained the demurrer because the plaintiff therein abandoned any right to recover on contract, nor is it certain that the language of the demurrer can fairly be held to express such abandonment. It may be that the former action was brought on the same cause of action as the present suit, and that the plaintiff has attempted to split a single cause of action, and brings his present suit to recover damages that might and should have been included in the first (the finding of the court suggests this) ; but this he may do and recover judgment on the second suit (if the first suit has not gone into judgment), unless the facts are properly pleaded by the defendant. If, however, when the demurrer to his plea in abatement was sustained, the defendant neglected to amend his plea, and instead answered the complaint under a misapprehension as to the ground on which the demurrer was sustained, caused by the fault of the plaintiff, it is possible the trial court may find sufficient reason for allowing the defendant to amend his plea in abatement so as properly to present the facts he had failed to state in legal form. On this we can express no opinion. It involves a matter of discretion on a state of facts that has not been ascertained. It may be that the court was right in saying that upon the facts alleged and found, the plaintiff could not have recovered at common law in an action of trover; but this was immaterial, if the plaintiff (assuming he was barred from recovering on the contract) was entitled to recover upon any non-contract cause of action, i. e., an action founded on breach of a duty imposed by law, as distinguished from a duty imposed by agreement. The right of recovery on such a cause of action depends upon the facts alleged and proved, and not upon the question whether case or trover would have been the proper form of action at common law. There is no need, however, to pursue the subject, for we are satisfied that a breach of contract having been alleged and proved,the court erred in ruling as stated in the finding, that after the plaintiff had treated the action as one of trover in the arrest of the body of the defendant, and in the demurrer to the plea in abatement, it was too late to claim otherwise, and in awarding judgment for costs in favor of the defendant upon the facts found.

There is error in the judgment of the Superior Court.

In this opinion the other judges concurred.