Drexel v. Hollander

McLaughlin, J.: The defendants appeal from an, interlocutory judgment’ overruling their demurrer to the complaint upon the ground tliat the causes of action alleged áre inconsistent and have been improperly joined. The material 'facts alleged, and admitted by the demurrer, are that a written contract was entered into between, the parties by which the defendants agreed to - sell, and the plaintiff to purchase, an automobile for $8,500 — $5,500 to be paid in’cash and the bal- "" anee by the delivery to the defendants of a second-hand automobile át a valuation of $3,000; that the plaintiff performed on Ms part by paying the'amount- of cash stipulated and delivering the old' automobile; that thereafter the defendants were unable to deliver the new automobile, and the contract, by mutual arrangement, was rescinded, and defendants returned to the plaintiff the $5,500 cash paid by him, but neglected and refused tó, return ■ the old automobile. The first cause of action set out in the complaint sets forth -the transaction between^ the parties, the rescission of the. agreement, a demand for the return of the old automobile and the defendants’ refusal, and that they “wrongfully converted the same to their own use ” to plaintiff’s damage of $3,000: In the second cause of action substantially the same facts are pleaded, except as to the demand of the old machine, defendants’ refusal to return and its wrongful conversion, and alleges, an agreement by the defendants, in consideration of .the cancellation of the original contract, to return to the plaintiff the purchase' money paid, viz.,;$8,500, no part of which had been repaid except the sum of $5,500, and judgment is demanded for the balance. The appellants contend that the two causes of action pleaded are inconsistent, and are, therefore, improperly joined. Whether or not this contention be sound depends upon the Construction to put upon section 484 of the Code of Civil Procedure. The first [27] cause of action being in tort and the second on contract, théy do not fall within either of the first eight subdivisions of this section and cannot be joined under those subdivisions. If properly joined it is because they come within the provisions of subdivision 9 of the section, which provides that causes of action may be united if they arise “upon claims arising out of the same transaction, or transactions connected with the same subject of action and not ■included within one of the foregoing subdivisions of 'this section.” The section, however, further provides as follows: “ But it must" appear,'upon the face of the complaint, that all the causes of action so united belong to one of the foregoing subdivisions of this section; that they are consistent with each other.” It may be assumed, as contended in the opinion of Mr. Justice Ingraham, that the facts pleaded show the two causes of action arise out of the same transaction, but are they “ consistent with each other?” To this inquiry it seems to me there can be but one answer. The first cause of action proceeds upon the theory that the title to the automobile ivas in the plaintiff, and that the defendants wrongfully deprived him of it by converting the same to their own use. The second cause of action proceeds upon the theory that the title to the automobile was, by agreement, in the defendants. The causes of action are not only inconsistent, but contradictory. The proof to establish one would destroy the other. For conversion plaintiff would have to prove that at the time the conversion took place he either had the title or was entitled, by.-reason of a special property therein, to possession. To recover under the second cause of action plaintiff would have to prove a breach of contract; that the title to the automobile was in defendants, they having purchased it from him at the agreed price of $3,000. ' The measure of damage in one case would be the value of the automobile" at the time the conversion took place, which might be more or less than $3,000, while in the other case the measure of damage would be the amount which the defendants agreed to pay or apply on the purchase price of the new machine. It is difficult tó see how these two causes of action could be tried together, unless the court received evidence first as to one and then as to the other, and if such trial were had it is equally, if not more, difficult to imagine how the trial court could properly 'submit the [28] subject to the jury. The truth is, the nature of the two actions is essentially different. The facts to establish the liability are unlike; the "measure of damage; is different,-and the defense is different.' That the causes of action are inconsistent and improperly joined in the complaint seems to be established by the following authorities: Keep v. Kaufman (56 N. Y. 332) ; Wiles v. Suydam (64 id. 173); Condé v. Rogers (74 App. Div. 147); McClure v. Wilson (13 id. 274); Teall v. City of Syracuse (32 Hun, 332). For these reasons we think that the interlocutory judgment should be reversed, with costs, and the demurrer sustained, With costs, with leave to the plaintiff to amend on payment of costs, in, this court arid in the court below. Clarke and Houghton, JJ., concurred; O’Brien, P. J., and Ingraham, J., dissented.