Craft Refrigerating MacHine Co. v. Quinnipiac Brewing Co.

BALDWIN, J. Complaints under the Practice Act are to “ contain a statement of the facts constituting the cause of action.” General Statutes, § 872. This is to be “a plain and concise statement of the material facts on which the pleader relies.” General Statutes, § 880. “ Acts and contracts may be stated according to their legal effect,” (Practice Book, p. 14, Rule III, sec. 1,) and “ the plaintiff may claim alternative relief, based upon an alternative construction of his cause of action.” (Id., p. 13, Rule II, § 9.) Several causes of action may be united in the sanie complaint, if all are “ upon claims, whether in contract or tort or both, arising out of the same transaction or transactions connected with the same subject of action; “ but they must be separately stated,” and “ if it appear to the court that they cannot all be conveniently heard together, the court may order separate trials of any such causes of action, or may direct that any one or more of them be expunged from the complaint.” General Statutes, § 878. “ Transactions connected with the same subject of action may include any transactions which grow out of the subject-matter in regard to which the controversy has arisen; as, for instance, the failure of a bailee to use the goods bailed for the purpose agreed, and also an injury to them by his fault or neglect.” Practice Book, p. 15, Rule III, § 7. Where separate and distinct causes of action (as distinguished from separate and distinct claims for relief, founded on the same cause of action or transaction,) are joined, “the complaint is to be divided into separate counts.” Practice Book, p. 12, Rule IX, § 4. Any exception for misjoinder of causes of action, whether in the same or separate counts, must be taken by demurrer, and if not so taken will be deemed to be waived. Practice Book, p. 17, Rule IY, § 13. These various statutory provisions and rules of court are *560 all designed to enable the plaintiff to state his grievance to the court, untrammeled by artificial forms of pleading, and regardless of most of the ancient distinctions of procedure as to law and equity, or contract and tort. There is no attempt to bring the parties to issue upon some “ single, certain and material point.” Each paragraph of the complaint is to contain “ as nearly as may be a separate allegation,” (General Statutes, § 880), and it is declared that “ the denial of any material allegation shall constitute an issue of fact.” Practice Book, p. 17, Rule IY, § 12. If, in any ease, so many of these issues are formed that the court fears the jury cannot properly dispose of all at one hearing, it “ may order that one or more of the issues joined be tried before the others.” General Statutes, § 1032. And if the issues made up by the parties are indefinite or indecisive, the court may direct them “ to prepare other issues, and such issues shall, if the parties differ, be settled by the court.” General Statutes, §880. The plaintiff’s complaint sets forth two causes of action, stating them in separate paragraphs, but not in separate counts. One cause of action is for breach of a contract to take and pay for two refrigerating machines at an agreed price. The other cause of action is for a conversion of the machines. It was proper to join these different causes of action in one complaint, either if both arose out of the same transaction, or if, while one arose out of one transaction and the other out of another, both these transactions were “ connected with the same subject of action.” This notion of completed action strongly characterizes the word in the Latin language, from which through the Normans we have derived it, although we gain little assistance otherwise from these sources in determining its meaning, since both the Romans and the French have used it mainly as a juridical term to signify an agreement of parties in settlement of differences. Dig. II., 15, de transactionibus, Civil Code of France, art. 2044. As the word is employed in American codes of pleading and in our own Practice Act, a transaction is something *561 which has taken place whereby a cause of action has arisen. It must therefore consist of an act or agreement, or several acts or agreements having some connection with each other, in which more than one person is concerned, and by which the legal relations of such persons between themselves are altered. The transaction between the parties to the present action began when they made the contract for the manufacture and sale of the two machines. Then followed the delivery of the machines, the refusal to accept them, the attempt of the plaintiff to retake them, the forcible prevention of their removal and the subsequent continuance of their use in the defendant’s business. Without taking each and all of these events into consideration, the legal relations of the parties could not be fully determined. From the delivery of the machines to the commencement of the action, they had remained continuously in the defendant’s possession. It had simply dealt with them in a different way at different times. The Practice Act is to be “ favorably and liberally construed as a remedial statute.” Practice Book, p. 21, Rule IX, § 4. It has taken the word “ transaction,” not out of any legal vocabulary of technical terms, but from the common speech of men. So far as we are aware it has never been the subject of any exact judicial definition. It is therefore to be construed as men commonly understand it, when applied, as in our Practice Act it certainly is applied, (General Statutes, § 878,) to any dealings between the parties resulting in wrongs, without regard to whether the wrong be done by violence, neglect, or breach of contract. It seems to us hardly to be doubted that any ordinary. man would consider everything stated in the complaint as properly belonging to a narrative of the-whole transaction between the parties, and necessary for the information of one who was to form a judgment as to their respective rights. That a broader meaning should be given to the term “ transaction ” than it has received in some of the courts of our sister states, is plain from the provision in the Practice Book, (p. 13, Rule II., § 7,) that “where several torts *562 are committed simultaneously against the plaintiff (as a battery accompanied by slanderous words) they may be joined as causes of action arising out of the same transaction, notwithstanding they may belong to different classes of actions.” This was the deliberate adoption of a view of the meaning of the word in question which had been previously disapproved in New York, as well as by Judge Bliss in his treatise on Code Pleading (§ 125), though accepted in Kansas. Anderson v. Hill, 53 Barb., 238, 245; Harris v. Avery, 5 Kans., 146. It follows that both the causes of action declared on were properly united in one complaint. The same result would also be reached if what we have viewed as one transaction could be regarded as consisting of several transactions, since such would all be connected with the same subject of action, that is, the two machines and the title to them. The plaintiff had a right to declare in separate counts. Bassett v. Shares, 63 Conn., 39, 41; Practice Book, p. 37, Form 30. We think, however, that it had an equal right to use but one. While two causes of action were set up as the basis of its right to damages, there was really but one on which a recovery was claimed. The plaintiff was not seeking to be paid twice for its machines. If they conformed to the contract, or if, though not conformable to it, the defendant, after full opportunity for examination, had finally accepted them under the contract, it was liable for the contract price. If the defendant on the other hand, had rightfully refused to accept them under the contract, and the plaintiff had acquiesced in such refusal, but had been forcibly prevented from taking them back, and the defendant had afterwards used them as its own, it would be liable for their value as on ii-conversion. The measure of the damages would differ according to the •-true construction of the plaintiff’s cause of action. It had a right to present claims for “ alternative relief, based upon an alternative construction” of this cause of the action. Separate counts are required for separate and distinct causes of action, but not for the presentation of separate and distinct *563 claims for relief founded on the same cause of action or transaction. Practice Book, p. 12, Rule II., § 4. This rule does not require separate counts in all cases where the plaintiff declares on several causes of. action, but only where these are separate and distinct from each other. In one sense every cause of action must be separate and distinct from any other, but evidently this cannot be the sense in which these terms of description are employed in the rules under the Practice Act, for it would make them mere surplus-age in this connection. Separate and distinct causes of action, within the meaning of this rule, must be such as are both separable from each other, and separable by some distinct line of demarcation. In Form 91 of the Practice Book (p. 65), there is alleged in a single count the breach of a contract to print a book from stereotype plates furnished by the plaintiff, and also a conversion of the plates. This form is referred to in the index to the Practice Book (p. 278),— an index carefully prepared by the commission which framed the Practice Act, and afterwards, by request of the judges, the rules to carry it into effect, — as a complaint for a conversion “ as part of an entire transaction.” Had the wrong done by the breach of contract which occurred at an earlier stage of: the transaction thus declared on been regarded as “separate and distinct” from the wrong done by the conversion which ended the transaction, two counts would have been necessary. To separate and distinguish the two causes of action set up in the complaint before us would be no easy task. In substance they amounted rather to separate and distinct claims for relief founded on the same transaction. In Form 15 of the Practice Book (p. 80) is found a complaint in a single count against two defendants, setting up a contract made by one as the agent of the other, and the denial by the latter of the existence of any agency. Relief in damages is sought against one or the other in the alternative. Here, obviously, are different causes of action. Not only are they several because each is against a different defendant, but one sounds in contract and the other in tort, since the only rem *564 edy in this jurisdiction against one who contracts as an agent without authority from the supposed principal, is by an action for the wrong done by his false assumption of authority. Johnson v. Smith, 21 Conn., 627, 634. Yet the Practice Book, here again, as in Form 91, does not treat them as “ separate and distinct,” within the meaning of Rule II. Our laws formerly cast on the plaintiff the duty of construing his rights with respect to the form in which they ought to be brought before the court, and the relief to which he might be entitled, at the risk of losing everything if he mistook his remedy. The Practice Act enables him, in a case like the present, to throw this duty of construction upon the court. It is enough for him to tell his story as plainly and concisely as may be, and to state the different kinds of relief, one of which he thinks he may fairly claim. The court will then apply the law to the facts alleged and proved, and award such relief as the case may call for. The plaintiff in the case at the bar, upon the facts stated in its complaint, might well doubt whether it was entitled to the contract price or the market value of the machines; that is, whether its recovery should be made to rest on a breach of contract or a conversion, — on the defendant’s refusal to pay for its own property, or its wrongful appropriation of the plaintiff’s property. To determine this question it was necessary to consider the whole of the transaction alleged. Without this it could not be- certain that justice between the parties would be done. The connection between the defendant’s notice that the machines were not accepted and its forcible resistance to their removal, was so close that the plaintiff’s story would have been but half told, had mention of either been omitted. The substantial question in dispute was whether the defendant had so ordered and dealt with the machines that it was bound to pay for them. Whether the liability rested on a contract or a tort, was matter of form, except as it might affect the assessment of damages; and if the plaintiff was entitled to judgment, the interest of both parties would be promoted by having the amount of *565 recovery ascertained by the proper rule, at the same hearing in which the right of recovery was established. The defendant refers to Turner v. Davis, 48 Conn., 397, 400, as affirming it to be a rule of pleading that a plaintiff can never “ occupy at one and the same time, with reference to the same subject-matter, and for the accomplishment of the same object, two positions utterly inconsistent with each other.” The question in that case was whether the mortgagee of a reversion who, after accepting an attornment from the tenant and giving him a lease, had sought and obtained a foreclosure and judgment of ejectment against the mortgagor, on a complaint alleging that he was in possession, could then change his position and maintain summary process against the tenant on the lease he had himself executed. This depended on the effect of a judgment by way of estop-pel. The remarks quoted from the opinion of the court were .pertinent to the ease before it, where the plaintiff’s rights had been fixed by a previous election. They have no application to the interpretation of the Practice Act in relation to the joinder of causes of action, between which no election has been previously made. It is the rule in some states that inconsistent claims cannot be set up in the same complaint, nor inconsistent defenses in the same answer; but a different policy has been adopted here. Practice Book, p. 11, Rule I, § 3; p. 13, Rule II, § 9 ; Forms 15,16, 389. The plaintiff’s complaint, therefore, was in proper form, and in our opinion it set up no claims that could not be properly and conveniently heard together. It follows that the trial court erred in requiring the plaintiff, during the progress of the trial, to elect between proceeding under its claim for breach of contract or under its claim for a tort. The order, however, while erroneous, was not void. The court had power to direct that one or the other of these claims should be expunged from the complaint, and to make the selection for this purpose itself. General Statutes, § 878. By the action taken the power and duty of selection, *566 instead of being exercised by the court, were cast upon the plaintiff. The court had jurisdiction over the parties and the cause. It was its duty to see that the issues were so framed and tried as not to embarrass the jury by any confusion of questions which could only be satisfactorily disposed of when separately presented. The right to require an election, within proper limits, and at the proper time, between different causes of action combined in a single proceeding, is one generally incident to courts of justice. State v. Tuller, 34 Conn., 280, 299. The error of the trial court was therefore committed in the exercise of its legitimate jurisdiction, and it was incumbent upon the plaintiff to obey the order or abide the consequences. Full warning was given by the court that a refusal to elect would be deemed sufficient ground for a dismissal of the suit. The General Statutes, § 999, direct that “ if the plaintiff shall refuse to obey the order of the court in pleading he shall be. nonsuited,” and the general rules of practice (58 Conn., 577, Rule Y), expressly provide that “ if a party fails to comply with an order or rule he will be nonsuited or defaulted.” It is not for him to refuse obedience to such an order because he deems it erroneous or because it is erroneous. Until revoked or reversed it is the law of the case. He can take his exception, but such exception will not suspend the course of justice. The order will still remain in force, and must be obeyed or the suit dismissed, if the authority of the court, and the dignity of the state which it represents, are to be maintained. It is urged by the plaintiff that, had it made the election required, and then failed to recover a verdict, it could never have sued again on the cause of action which had not been submitted to the jury. But the order of the court was made simply to facilitate the disposition of the case on trial. Its effect was limited by its object. An election forced upon a plaintiff under such circumstances would be simply an election for the purpose of the trial, and his selection of one out of two causes of action arising out of the same transaction would no more have extinguished that not chosen than if it *567 had arisen out of a totally different transaction. As to one cause of action only would the plaintiff have had his day in. court. The other would stand as if wholly unheard ; and as to both, if the order were erroneous and a proper exception taken before making the election, a new trial could be had on the original complaint. The only exception taken by the • plaintiff at the trial of this action in the court below was to the order dismissing the complaint; but, as another suit may be hereafter brought, we have thought it better to express our views fully as to the question of pleading and practice which had previously arisen, and which would be not unlikely to recur in any subsequent proceedings between the parties. There is no error in the judgment appealed from. In this opinion ANDREWS, C. J., and FeNN, J., concurred ; CarpeNter and Torrance, Js., dissented.