Kelsey v. Punderford

Hall, J. The plaintiff should have been permitted to amend his complaint by filing the proposed new count. It appears from the memorandum of the trial judge that *274 the motion to so amend was denied, “ not as a matter of discretion, but on the authority of Goodrich v. Alfred, 72 Conn. 257.” In that case, which was an action upon a contract of sale, it was held that as the plaintiff had sued only in his individual capacity, and as the complaint contained no allegation of any assignment of the claim sued upon, or that the plaintiff was the actual and bona fide owner of it, that part of the common counts relative to sales was not—in the absence of a motion to make the plaintiff as trustee a party plaintiff, and then to amend the complaint by alleging that as such trustee he was the actual and bona fide owner of such claim—an appropriate general statement of a right of action owned by the plaintiff as trustee for another by virtue of an assignment from a third person. It was also suggested that the same rule might not apply to an action for money had and received. In discussing questions relating to the common counts in the form in which they appear in Form 85, Practice Book, page 60, in the cases of New York Breweries Corporation v. Baker, 68 Conn. 337, 343, and Dunnett v. Thornton, 73 id. 1, and in several other cases, this court has in effect said, that without a bill of particulars or further statement of the cause of action, they neither contain a common count good at common law, since they do not, and under the Practice Act cannot, contain the fictitious promise essential to the common-law common count, nor are they such a complete and particular statement of the facts constituting the cause of action as is required by the Practice Act; that the use of this incomplete form is only allowable under Rule 2, § 1, and Rule 4, § 1, of Rules under the Practice Act (Practice Book, pages 12 and 15), adopted by the judges of the Superior Court, by authority of § 33 of the Practice Act, in order to give effect to its real purpose; that these so-called counts can only be used in the commencement of an action, and then only when some one of them is an appropriate general statement of the real cause of action; that they can never be used as a single count for the separate statement of a cause of action; that *275 when a proper bill of particulars is duly filed, only those of the common counts applicable thereto remain in the complaint; and that when, by way of amendment, such a substitute complaint or complete statement of the facts showing the cause of action, as is required by the Practice Act in other cases, is duly filed, the common counts drop out of the case. These are, generally, the rules and principles which have been applied by this court in determining the use which may be made of this form of complaint, and the character of the bill of particulars or further statement which may be after-wards filed when such form of complaint is properly used. But the case of Goodrich v. Alfred, 72 Conn. 257, was decided in the trial court in April, 1899, and the cases above referred to—except the case of Dunnett v. Thornton, 73 Conn. 1, which was decided by this court in May, 1900—assume only to state the law and rules of court in force prior to August, 1899. In that year an Act was passed which took effect August 1st, and which provided that the form of complaint denominated the common counts, in the Rules under the Practice Act, might “ be used for the commencement of an action in all cases where any of these counts is a general statement of the cause of action, and may also be used in the same complaint in connection with and joined to special counts whenever the said action is brought to recover for work and labor done when the contract is claimed to have been fully performed, for materials furnished, goods sold and delivered, and for money had and received. But before any default shall be entered, or judgment shall be rendered thereon, the plaintiff shall furnish a bill of particulars of the item or items of his claim, and, when filed in court, all paragraphs not appropriate to said bill of particulars shall by the filing thereof be deemed to be stricken out of the complaint.” Public Acts of 1899, p. 1062, Chap. 139. The language of the original rule under the Practice Act (Rule 2, § 1), restricting the use of such common counts to the commencement of an action, and when one of *276 the so-called counts was an appropriate general statement of the cause of action, was omitted in the revised rules which went into effect September 1st, 1899, and the original rule was changed to conform to the provisions of the Act of 1899. Rules of Court (Ed. of 1899), p. 41, § 129. In speaking of the right of a plaintiff under the Act of 1899 and the new rules, to amend his complaint in an action commenced with such common counts, we said in Dunnett v. Thornton, 73 Conn. 1, 8, 9: “ Under the rule (§ 129) and statutes now in force, Form 85, like any other insufficient statement, may be amended by supplying the omitted material facts and, like every complaint, may be amended by adding facts which may support additional causes of action. The extent' of such amendment depends on the law regulating amendments, which the rule does not alter. ... No substantial question of pleading ought to arise under the rule in its present form. When a plaintiff uses Form 85 the rule relieves him, for a limited time, from the penalties incident to the use of such a defective statement ; but he must amend so as to have a proper complaint, and the extent of the amendment is governed by the general law, not by the rule. . . . The permissibility of the amendment must be governed by the rules that control an amendment to any complaint, and the sufficiency and propriety of the complaint as amended must be determined like that of every other complaint.” The provisions of the Act of 1899 appear, in nearly the same language, in § 627 of the Revision of 1902, which was in force when the present action was commenced. As this action was brought to recover for money had and received, the plaintiff, by the law and rules then in force, was permitted, in commencing the action, to join, had he chosen to do so, the incomplete common counts with a special count fully stating the facts showing his cause of action, and, after having filed a bill of particulars under such common counts, of “ the item or items ” of his claim, to. have the paragraphs of the common counts appropriate to the bill of particulars remain, as a separate count or counts in the complaint, with the *277 special count. If lie failed to file such a bill of particulars, judgment could be rendered in his favor upon the special count only. If the special count could have properly been originally joined with such common counts, the court could have allowed it to be joined afterwards by way of amendment. General Statutes, § 639. As the plaintiff is now permitted in certain cases to add a special count to the so-called common counts, there seems to be no good reason why he should be prevented from doing so merely because of the absence in the common counts of the proper allegation of -the assignment and ownership of the claim sued upon, which is contained in the special count, and whether or not the plaintiff also seeks to amend such defect in the common counts. It is unnecessary to inquire whether, under the law and rules in force prior to the Act of 1899, the paragraph of the common counts relative to money had and received is such an appropriate general statement of the plaintiff’s cause of action in this case as to allow'the filing of the special count in question. Under the present law the court might properly have permitted it to be filed. In the absence of an amendment of the complaint adding proper allegations of the assignment to the plaintiff of the claim sued upon, or of an application to join Hoadley as a coplaintiff, the bill of particulars containing a statement of such assignment was not improperly stricken from the files. It was not the office of the bill of particulars to supply necessary allegations of the complaint (Forbes v. Rowe, 48 Conn. 413), but only to state “ the item or items of his (the plaintiff’s) claim.” Whether it might properly have been filed as a statement of the facts constituting the cause of action, is not a question for discussion, since, if so considered, the new count, containing a more complete statement of such facts, must be regarded as a substitute for the first statement. Groodrich v. Stanton, 71 Conn. 418, 424. There was error in denying the plaintiff’s motion to amend the complaint by filing the additional count, and the case is *278 remanded with direction to vacate said order and allow said amendment. Error and case remanded. In this opinion the other judges concurred.