Thompson v. Williams

1 Tapp. Rep. 34

• Court: Belmont County Court of Common Pleas
• Decided: May 15, 1816
• Status: Published

Opinion

President.

The first question in this case is, what is the form of the action ? The language of pleading is to have a reasonable intendment and construction, and where a matter is capable of different meanings, that shall be taken which will support the declaration, &c., and not the other which would defeat it. 1st Chitty, 241. Were this declaration to be considered as in form ex contractu, it cannot be supported : 1st. As to the first count: It is by the law of the U. States made the duty of the owner of stills to enter them; he is liable to a penalty for not doing it. The defendant contracted to pay the excise or duty which had been or might be laid or assessed by the U. States, and “to hold and keep the plaintiff harmless and indemnified therefrom;” he was not bound by his contract to enter the stills for the plaintiff, but only to pay the duty or excise after the stills should be entered. Before the plaintiff could entitle himself to the benefit of this contract, he must perform the implied condition precedent, be entering the stills according to law, and to put it in the defendant’s power to pay the excise. Nothing of this is averred in the declaration.

The law does not create a promise in any case in pleading, nor does it imply one except in case of legal liability. It is not stated in this count, that the defendant super se assumpsit or words to that effect.

There is no breach of this contract alleged; it is stated that the defendant “ did not enter said stills or pay the excise.” Wherever the contract is in the disjunctive the breach must be assigned, that the defendant did not do the one act or the other; the contract here, is to pay or save harmless; and for .ought appears, defendant may have saved the plaintiff harmless from the duty, although he neither paid the excise or entered the stills.

There is no averment of the amount of the excise which the defendant was to pay, nor to whom it was payable, nor that the plaintiff was compelled to pay it, or did pay it, for defendant. For these reasons, I cannot take the first count to be in form ex contractu.

2d. As to the second count: An award is set forth, but not in a form to maintain assumpsit on it; an award to pay to the United States “ the excise on two stills for two months or upwards,” or what “ had accrued” on the contract stated is not very certain. This award is not performed on the part of the plaintiff; confessing a judgment is not paying the amount awarded; in stating the breach, the plaintiff does not aver how much the defendant was to .pay, or that he had been obliged to pay any sum for him, or in any way entitle himself to maintain an action of assumpsit for money awarded to be paid to the U. States. In an action in form ex delicto, “it is not necessary to prove the whole ease, for though the plaintiff fail in many of the particulars, yet if he prove so much of it as leaves him a good cause of action, he shall recover.” 1st Chit. 373. Whereas in actions in form ex contrcatu,, the contract must be formally stated in the declaration and fully proven. I conclude, therefore, that this count cannot be considered as in form ex contractu.

The next question will be: has the plaintiff set forth and alleged any wrong done or permitted by the defendant, for which, by law, he can recover damages of him. The first count states, that the defendant informed against the plaintiff as the owner of the stills, and caused and procured an information, &c.; and that the plaintiff, in consequence thereof, was mulct. The 2d count is substantially like the first, in stating the wrong done by the defendant. This might be a very knavish act in the defendant, and I have no doubt it was; yet it seems very clear that it was no such wrong or injury to the plaintiff as to entitle him to come into a court of justice for the recovery of damages. To give information to the proper officer of any breach of the laws of the. United States or of this State, to cause and procure a person to be prosecuted for such delinquency, cannot be recognized by this court as a wrongful act; a public duty cannot be made, by contract, such a private injury as to sustain an action for damages for'the performance of it.

The judgment is arrested.