Inhabitants of Cape Elizabeth v. Lombard

Peters, J. The declaration consists of a count upon an account annexed and an omnibus money count. If the liability of the defendant arises only by force of the statute regulating the support of insane persons at the state hospital, the action in this form could not be sustained. There would be no contract express or implied to found such a style of declaration upon. It is a well established rule of law that, when a statute gives a special remedy upon particular facts, those facts must be specially alleged, Drowne v. Stimpson, 2 Mass. 444. Salem v. Andover, 3 Mass. 438. Bath v. Freeport, 5 Mass. 326. Rogers v. Newbury, 105 Mass. 533. Augusta v. Chelsea, 47 Maine, 367. Sanford v. Haskell, 50 Maine, 86. Hathorn v. Calef, 53 Maine, 471. Bethel v. Bean, 58 Maine, 89. Fryeburg v. Brownfield, 68 Maine, 145. An exception to the rule would be when by the statute it is provided it may be otherwise, as it was in Gilman v. Portland, 51 Maine, 458. Most of the above cases were essentially like the case at bar. To this declaration a demurrer is filed. Had there been a demurrer to the evidence, or an objection to the admission of evidence as not supporting the declaration, and it did not appear [399] that there was any contract between the parties, in such case the defendant would have gained the point which evidently he had in view. But the question before us is not one of evidence, it is one of pleading. The only thing we are to decide is whether the - declaration would be sufficient, if supported by the evidence. The demurrer is proof, by way of admission, that the facts alleged are true. We are to ascertain what facts are alleged. The account annexed is “For cash paid for your (defendant’s) support at the insane hospital.” What is the legal meaning of that charge, and what, in a legal sense, did the plaintiffs intend by it ? As their meaning is not fully expressed in words, the omission is to be supplied by a legal inference. The legal presumption is that they mean to say, that the money was paid at the special instance and request of the defendant. If so paid, then the allegations in the count upon an account annexed would be proved and the action be sustained. By ancient usage, this form of declaring has been sanctioned in this and other states, and in our practice is more commonly used perhaps than all other forms of declaration put together. The account annexed to the writ is allowed to supply the want of proper allegations in the body of the declaration. The account when in the writ is to be read as its words would naturally be interpreted when out of the writ. Therefore, by usage, it has always been understood and allowed, that an item “for merchandise” shall mean “merchandise sold and delivered,” whether the goods be sold at a fixed price or not, and whether actually or con strnctively delivered, and oven delivery is not necessary where title to the goods passes without delivery ; that an item “for work and materials” shall mean “done and expended for the defendant at the defendant’s request; that an item “for cash” shall mean and imply “money lent”; and that an item “for money paid” shall mean, by implication, “money paid at the special instance and request of the defendant.” It is not ordinarily to be supposed that one person would pay money for another unless requested. As to what may be considered merchandise, or work, or materials, or money lent or paid, the interpre tation has been so liberal that a very great variety of subjects may be sufficiently and are com [400] monly declared for in this form of action. The account annexed is a substitute in practice for the common money counts, as a readier and more direct mode of declaring. From this it follows that the first count in the writ is good. Hilton v. Burley, 2 N. H. 193. Bassett v. Spofford, 11 N. H. 167. Newmarket Iron Foundry v. Harvey, 23 N. H. 295. Kinder v. Shaw, 2 Mass. 398. Rider v. Robbins, 13 Mass. 284. Gilman v. Portland, supra. See 2 Chitty Plead. (17th Am. ed.) page 27 et seq., where a mass of cases variously illustrating the use of the money counts will be found collected. The second count is good. It is the common counts consolidated into one count. It was held good by Chief Justice Saunders, and commended by Sergeant Williams in his note to Webber v. Tivill, 2 Saund. 122, as a practice avoiding 'prolixity of pleading and saving expense. Mr. Cliitty (Pleadings) says: “Several distinct debts due in respect of different contracts not under seal, of the same or a different nature, as demands for work, and debts for goods, money lent, etc., might always be included in one count of this description.” Such a count may be sustained or defeated in part or whole. It may be demurred to in part without demurring to the whole. Bailey v. Freeman, 4 Johns. 280. Oliver’s Prec. 153, etin nota. See 24 Pick. 406. Had the first count been bad, the second count would not have been vitiated on account of its referring .to the account annexed for its bill of particulars. One count might correctly and another incorrectly describe the cause of action, and the specifications be the samé for both counts. The very object of double counts is that one may succeed if others should fail, in a correct description of the cause of action. Keyes v. Stone, 5 Mass. 391. Little v. Blunt, 13 Pick. 473. Hotchkiss v. Judd, 12 Allen, 447. Exceptions sustained. Demurrer overruled. ■ Judgment far plaintiffs. Appleton, O. J., Walton, Yirgin, Libbey and Symonds, JJ., concurred.