Gordon v. Kennedy

Tilghman C. J. delivered judgment. The error assigned in this case appears on the face of the [292] declaration. There are seven counts, to only one of which, (the second) an objection is made. In this count it is stated that on the 8th July 1805, the plaintiff, at the request of the defendant, had undertaken and did superintend the defendant’s brewery, and did instruct the defendant’s son in the art of brewing, in consideration whereof the defendant promised to pay him the sum of eight hundred dollars per annum, and to provide for the said plaintiff a convenient lodging room with bed, bedding and fuel, at the cost and expense of the said defendant; and although the plaintiff did perform, and was ready and willing to perform, his promises and undertakings, yet the defendant had broken his assumption in this, that he had not paid to the plaintiff the said sum of eight hundred dollars nor any part thereof, nor had he accommodated the plaintiff with a convenient lodging room, with bed, bedding and fuel as aforesaid. This action was brought to March term 1806. The exception is, that by the plaintiff’s own shewing, the sum of eight hundred dollars was not due, till after the action brought, and yet he has recovered damages for the nonpayment of it. On the other hand, the plaintiff contends, that although the damages were assessed generally, yet in as much as this count contains a good cause of action, independent of the eight hundred dollars, viz. the not finding him a room, with bed, &c. it shall be intended that the damages were given only for those things for which there was cause of action at the time the suit was commenced. We are always anxious to support a verdict on the merits of the case, and have examined the authorities which were cited on the argument, with a wish to affirm the judgment if possible. But we find them too strong to be got over. It has been said in general, j:hat where a count contains matter of various kinds, some ¡jood, some bad, it shall be intended that the damages were given only for what was good. But many errors arise from the application of general sayings to particular cases, to which they are not adapted. The dictum which I have mentioned, is applicable to actions of slander, for a special reason. A case is mentioned in 10 Co. 130. where an action was brought for calling a man an errant knave, a cozener, and a traitor. The action was supported after verdict for the plaintiff, because altogether it is but one [293] scandal, the words being all spoken at one and the same time. In-such a case the plaintiff is obliged to lay the words as' spoken, and it shall be intended that the jury paid no regard to any but the actionable words. This principle is adopted, and more fully explained, in the case of Lloyd v. Morris. (Willes’ Rep. 443.) There, the words were “ you are a pick-K pocket and murderer; you stole a guinea from A; you killed “ his cattle, and murdered his child.” The charge of killing eattle is not actionable; but the court said, it was necessary for the jury to find the defendant guilty of the whole or none; and if judgment must be arrested, a man, by speaking words not actionable and words actionable together, will secure himself from an action. But we shall find the law to be very different, where the plaintiff introduces into his declaration, matter for which, on his own shewing, there was no cause of action, and which he had no occasion to introduce. Such was the case of Poles v. Osborne, cited 10 Co. 130. b. It was an action of trespass for breaking the plaintiff’s close, and beating his servant, without adding per quod servitium amisit. The breaking of the close was a good cause of action; yet the judgment was arrested, after verdict and entire damages assessed. The case of Clifford, is also cited in 10 Co. 130. b. Clifford brought a writ of ejectione custodia terra et haredis. Damages were assessed generally, and the judgment would have been arrested, because an action did not lie for the custody of an heir, but the plaintiff released all the damages, and took judgment of the ejectment of the land only. These cases prove that the court cannot legally presume that the damages were given only for that matter which was actionable. It is unnecessary to cite other authorities, though many might be produced in support of the same principle. In the case before us, the plaintiff was obliged to set out the whole contract; but he was not obliged to assign as a breach the nonpayment of money, which from his own shewing could not be due. We must take for granted that the jury gave some, if not the whole, of that money in damages. We are therefore of opinion that the judgment was erroneous, and must be reversed. Judgment reversed.