Krower v. . Reynolds

Andrews, J. Judgment in the action was recovered against the defendant upon his covenant in his deed from Shaw to assume and pay the mortgage on the granted premises, executed by Shaw to Capron. The trial judge in substance ruled that the complaint set forth two causes of action, one upon the covenant and the other upon the deficiency judgment against Reynolds, founded on the covenant, rendered by the Hew Jersey court in an action for the foreclosure of the Ca-pron mortgage, in which Reynolds was joined as a party defendant. The defendant insists that only one cause of action was set forth in the complaint, to-wit: a cause of action on the judgment, and that the plaintiff having failed to prove a valid judgment against him, the complaint should have been dismissed. This presents the main question on this appeal. The allegations in the complaint are embraced in a single statement or count, and if it embraces two causes of action, the pleading does not conform to the requirement of the Code. (§ 483.) But an omission to separate two different causes of action in a complaint is a defect to be corrected on motion. If the defendant proceeds to trial without making his motion, the defect, being in a matter of form only, and not affecting a substantial right, will be disregarded. (Code, § 723.) The question to be determined is whether the complaint in substance set forth two causes of action, or a cause of action on the judgment only. It alleges the making of the bond and mortgage by Shaw to Capron; an assignment to Oudkirk, the plaintiff’s testator; the subsequent purchase of the mortgaged premises by Reynolds, the defendant; the assumption by him of the mortgage, and his covenant to pay the same in consideration of the purchase and conveyance ; the subsequent commencement by Oudkirk of an action to foreclose the mort *249 gage in the Court -of Chancery in New Jersey, alleged to be a court of general jurisdiction, against Shaw, Reynolds and others by process duly issued and served on the defendants therein, in which action judgment was duly recovered by the plaintiff against Reynolds on the 26th day of October, 1877, for $5,053.78, on his liability on his covenant; the death of Oudkirk and the appointment of the plaintiffs as his executors. The complaint concludes by demanding judgment against Reynolds for $5,053.78, with interest from October 26,1877, the date of the judgment. It is to be observed that upon the facts stated in the complaint, the covenant was merged in the judgment an d no subsequent action on the covenant could be sustained. This consideration is not decisive upon the point in controversy, because a plaintiff may join in his complaint different and even inconsistent causes of "action, provided only that they all belong to one of the classes mentioned in section 484 of the Code. But the fact that an action on the covenant could not be maintained after a judgment had once been rendered thereon has a material bearing upon the construction of the pleading. The pleader has blended in a single statement the averments of the making of the covenant and the subsequent recovery of a valid judgment thereon. Did he intend to set forth in this single statement two inconsistent causes of action, or only one cause of action, that is to say, a cause of action on the judgment, inserting the allegations as to the bond and mortgage, and the assumption of the debt by the defendant and his covenant to pay the mortgage, only by way of introduction or inducement to the final fact, viz.: the recovery of the judgment \ This latter seems the most natural and reasonable construction of the pleading. There is another material consideration. The complaint does not contain the averments necessary to a complete cause of action on the covenant. It alleges the making and the consideration of the covenant, and that the defendant thereby became liable to pay the mortgage. But there is no breach alleged. This was necessary. (Marie v. Garrison, 83 N. Y. 23.) There is no averment that the mortgage had not been paid or that Reynolds had failed to perform his covenant. If the averments in re *250 spect to the judgment should be eliminated, the complaint would have been demurrable, as not stating facts sufficient to constitute a cause of action. If the parties had gone to trial on a complaint so framed, an amendment would doubtless have been allowed, but the point here is whether allegations proper, if not necessary, to a cause of action on the judgment, by way of inducement, are to be construed as intended to set up an independent cause of action, and this when a material averment to such cause of action is wanting. The answer of the defendant admitted the facts alleged in the complaint as to the making of the covenant, but denied the judgment and set up certain facts by way of equitable defense thereto. On the trial the plaintiffs made no attempt to prove the judgment alleged in the complaint, but rested on proof of their appointment as executors. The defendant thereupon moved for a nonsuit on the ground that the plaintiffs had not proved the cause of action set forth in the complaint. We think the motion should have been granted. We fully approve of the rule that pleadings should be liberally construed, with a view to promote substantial j ustice, but we are of opinion that the complaint in this ease, fairly construed, sets forth a single cause of action upon the judgment and does not embrace a cause of action on the covenant. The judgment should be reversed and a new trial granted. All concur. Judgment reversed.