Candler & Hart v. Rossiter

By the Court, Sutherland, J. This is a writ of error to the court of common pleas of the city and county of New-York. It is in the nature of a motion in arrest of judgment, [490] as the errors relied upon are the substantial defects of the declaration, which contains two counts, both of which it is contended are bad in substance. They are both exceedingly informal, and the first, I am inclined to think, is too imperfect to be sustained, even after verdict. It sets forth no promise, agreement or contract whatever, on the part of the defendants, and contains no express averment of any kind. It states no-contract or agreement on the part of the defendant, that the fish should be sold in common, and the profit equally shared, or the loss equally borne by the parties -f it merely states, and that by way of recital, that the defendants purchased and put on board the same vessel a* quantity of fish, equal to that of the plaintiff to be sold in common therewith, for the purpose and with the intention of dividing the money arising from the sale thereof, profit or loss. Admitting such to have been their intention, it does not amount to an agreement; and if it did, no consideration whatever is stated to support it. It is not averred that the purchase of the fish by the plaintiff was in any manner induced by or connected with the acts or intentions of the defendants, in relation to their portion of the fish. It is not shown how or in what manner it happened that the whole lot of fish did not sell for enough to pay the charges at Vera Cruz, nor by whom the fish were sold, nor how the plaintiff was compelled, or became liable to pay the deficiency. It is not shown that he or his agent went with the fish to Vera Cruz, and there disposed of them, and in that manner became responsible for the charges, &c. It has been held that where the contract declared on is founded on a legal liability and implied therefrom, it is sufficient to state such liability, without alleging formally that the defendant promised, as in assumpsit, on a bill of exchange. There, when it is shown by the declaration how and in what manner the defendant became a party to the bill, and that he was duly charged, &c. his legal liability is fixed and certain, and the law will imply a promise to pay it, without its being expressly averred. 1 Salk. 138. 5 T. R. 145. 1 Chitty’s Plead. 299. But, as a general rule in assumpsit, if the declaration does not state that the defendant undertook and promised the plaintiff, &c. or something equivalent thereto, it will be held [491] bad, even after verdict and judgment. Lawes on Plead. 88. This was expressly adjudged in Buckler v. Angell, 1 Lev. 164. 1 id. 246. 7 Ld. Raym. 124. The declaration in that case stated, that whereas the plaintiff had procured one Woodward, at the request of the defendant, to surrender a lease, the defendant, solvere vdlet, would pay £10. On non-assumpsit pleaded, and verdict for the plaintiff, judgment was arrested, because no promise was laid, and therefore no issue joined; and this case was recognized and followed as authority in Lea v. Welch, Lord Raym. 15, 16, 1 Geo. 2; a case precisely similar, except that the judgment was by default, and not upon verdict. It is probable that at this day the defect in those declarations would be considered a clerical omission, as the sentence in ■each was obviously imperfect without the words undertook and promised—super se assumpsit, &c.; but they mark strongly the indispensable importance of the allegation that the defendant promised, &c. Mr. Lawes, whose treatise on pleading in the action of assumpsit is of the highest authority, seems to consider the omission of the allegation as fatal, after verdict. This doctrine, upon the authority of the preceding cases, was also admitted by the supreme court of Massachusetts, in 3 Mass. R. 160; opinion of Sedgwick, J., page 176. Judge Gould, in his valuable treatise on pleading, speaking on the subject of direct and positive averments, says, the rule appears to be, that all those facts which are directly denied by the terms of the general issue, or which may, by the established usage of pleading, be specially traversed, must be averred in direct and positive terms. Thus, in assumpsit the promise must be stated in terms direct and positive, because the general issue, non assumpsit, purports to be a direct denial of the promise. Gould’s Treatise on Plead. 73, § 42, 44, 75. Considering, therefore, that no contract or agreement whatever is distinctly stated, nor any promise by the defendant, nor any consideration for a promise, I think the judgment must be arrested. These defects are not cured by the statute of jeofails; it is the case of a defective title, and not of a good title defectively set out. The second count states, with somewhat more precision, a contract or agreement between the parties j but it is unneces [492] savy particularly to consider it, as it is well settled that if either count is bad, the judgment is erroneous and must be reversed. The case of Smith v. Allen, 18 Johns. R. 245, decides that after a trial and verdict for the plaintiff, it is too late for the defendant to object that the subject matter of the suit was a co-partnership transaction between him and the plaintiff. The objection should have been made at the trial. Judgment reversed, and venire de novo,