Hill's Administrator v. Nichols

PETERS, C. J. I have looked into this case with a strong inclination to sustain the ruling of the court below on the demurrer ; but.I cannot find reasons sufficient to justify me in so doing. The first count of the complaint is clearly insufficient. Assumpsit lies for the recovery of damages for the breach of any contract, express or implied by law, which is not under seal. 1 Chitty’s Pleadings, 90 et seq. ; Stephens on Pleading, 19 ; Gould’s Pleading, 58, § 19 ; 1 Bacon’s Abr. (Bouv. ed.) 395. The action must be brought in the name of the party really interested. Rev. Code, § 2523. The complaint should allege a promise, or a contract which shows a promise, by the defendant, or, as in this case, by the deceased in his lifetime, to the plaintiff, to pay a sum of money, or perform some other duty, and a breach of this duty, by a failure or refusal to pay the money, or to perform the duty specified in the contract. The count must allege all the facts necessary to support the action. 1 Chitty’s PI. 255. Here, the only contract alleged is the receipt. This does not show any promise to pay money, oían undertaking to do any other particular thing. The breaches alleged do not supply this deficiency. The receipt only shows that, on the 8th day of June, 1863, one hundred and sixty-five dollars were left by the plaintiff with the defendant’s intestate and Sulser; but it does not show that the money was to be returned, or to be otherwise accounted for. In the case of a note, or a bond, this appears from the instrument itself; and this is necessary to give the instrument the effect of a contract, on which assumpsit can be maintained. In addition to the receipt of the money, the count should have averred, that the defendant (or in this case, the defendant’s intestate) promised to return the money to the plaintiff within some reasonable time, or, in lieu of the money, to deliver to the plaintiff so much salt as the parties may have agreed upon, or so much as the money would purchase. This averment, made in technical form, with the breaches already assigned, would have made the count complete and sufficient. The court erred, therefore, in overruling the demurrer. There was no error in overruling the objection to the admission of the receipt in evidence. The first count- shows that the receipt is the foundation of the action. It alleges that the money claimed was due by the contract set out in the receipt. When this is the case, the instrument itself “ is evidence of the existence of the debt, or that the party undertook to perform the duty for which it was given.” Rev. Code, § 2681. The contract was, then, good under the first count; and if the motion to exclude was intended to apply to the second count only, it should have been confined to” that count. [339] It does not appear that the receipt was treated by the plaintiff as the obligation of a partnership; nor does this appear on its face. It is simply the receipt of “ Hill & Sulser.” This would have been its legal effect, had the conjunction between these names been left out. Whatever liability the instrument creates, it is joint and several; and either party may be sued, or both. Rev. Code, §§ 2538-9. It was no release to Hill that Sulser was not sued. Rev. Code, § 2539; Oliver v. Hutto, 5 Ala. 211. After the due execution of the receipt was proved, it was competent, so far as it went, under the second count, as evidence of money loaned, or of an account stated; and it seems that this count, however untechnically drawn, was intended to include both of these causes of action. The record does not show that all the evidence given at the trial is set out in the bill of exceptions. But it is made to appear that, in conjunction with the proof of the due execution of the instrument,, there was a demand of the money mentioned in the receipt, by the plaintiff of the defendant’s intestate, and his failure to pay it. There was proof, also, of a demand of the salt, and his failure to deliver it; but this proof was objected to by the defendant, and was ruled out by the court on his motion. The court, did not err in the refusal of the charge asked by the defendant. Whether the salt was delivered, was a matter of defence, and it was not incumbent on the plaintiff to prove it. Besides, the defendant himself had caused the evidence which established its non-delivery to be excluded from the jury; and by moving its exclusion, he consented to waive its proof. What a party consents to waive must be at his own injury, and not at the injury of the opposite party. 26 Ala. 686, 433 ; 7 Ala. 351; 1 Ala. 287. For the same reason, the charge given by the court “ of its own motion ” was not erroneous. Nor was this instruction a charge on “ the effect of the testimony,” which the court is prohibited from giving unless requested. Rev. Code, § 2678. When all the evidence is not set out in the record, this court will presume that there was, in connection with the evidence which is set out, other evidence also, which justified a charge given. But the question still remains to be considered, whether the judgment of the court below should be reversed, on account of the error committed in overruling the demurrer to the first count, as has already been shown. I think it should not be. It does not appear that the defendant offered any evidence whatever in support of hisj pleas. The jury found that the plaintiff’s case was fully proved. There were two counts in the complaint. One was good, and the other was bad. The verdict does not assess damages on both of these counts. The [340] sum found to be due is the principal and interest, or very nearly so, of the sum mentioned as claimed severally in each count. It is not tbe sum claimed in both counts together. When there are two counts, and both are sustained by the evidence, the plaintiff is entitled to judgment on each count, because the counts are as distinct as if they had been in two several actions. 7 Bacon’s Abr. (Bouv. ed.) 466, and cases there cited. If, then, the plaintiff has a verdict and judgment on one count, which is good, it is no injury to the defendant, and he cannot complain. It was settled by our learned predecessors in this tribunal, in a case similar to this, that improperly overruling a demurrer to a special count, in a declaration containing also the common counts, is not a reversible error, when the bill of exceptions discloses the evidence, and shows the plaintiff’s right of recovery under the common counts. Smith & Gary v. Aubrey, 19 Ala. 63. The principle thus settled justifies the affirmance of the case at bar. 1 Brickell’s Digest, 780, §§ 96-99, The judgment- of the court below is affirmed.