Vandenheuvel v. Storrs

Hosmer, Ch. J. All the coparceners, except the plaintiff’s wife, having successively died, after the defendant’s occupation of the land, the right of action survived to the plaintiff, and may be joined with a demand due in his own right. 1 Chitt. Plead. 200. It is an established principle, that the plaintiff, in an action on simple contract, may declare, without describing himself as surviving partner. Ditchburn v. Spracklin & al. 5 Esp. Rep. 32. Hyat v. Hare, Comb. Rep. 383. Smith v. Burrow, 2 Term Rep. 476. Spalding & al. v. Mure & al. 6 Term Rep. 365. But it is equally clear, that he must always declare according to his title. If the legal interest is joint, it must be so described, and all the persons having the joint interest, if alive, must unite in the action. If one or more die, the survivor may sue, but the cause of action must be correctly set forth, and the declaration must contain such a description of it, that the defendant may know what it is he is called upon to answer. In this case, the plaintiff counts on a promise made exclusively to himself. This allegation he has endeavoured to sustain, by a series of facts, evincive of promises made to the heirs of C. W. Apthorp jointly, and after the death of all of them, except his wife, of a promise made to himself. The plaintiff has not truly declared according to his title; a J the [208] proof adduced, does not support his declaration. The point is decisively established, by Ditchburn v. Spracklin & al. 5 Esp. Rep. 32. Holmes v. D'Camp, 1 Johns. Rep. 36. Bullock v. Jackson, 1 Esp. Dig. 137. In Israel & al. v. Simmons, 2 Stark. Rep. 356. an action of assumpsit was brought on an implied contract, by the lessees of a building. Jacob Hart, one of the original lessees, after the occupation of the premises, died ; and the plaintiffs alleged, that the defendant was indebted to them for the use and occupation, &c. but there was no count averring an occupation by permission of Hart and themselves. The plaintiffs were non-suited •, and the decision was afterwards affirmed by the court of King’s Bench. “ The seats, (say the court,) had been held, not by the permission of the plaintiffs, but of the plaintiffs and Jacob Hart.” Vide Richards v. Heather, 1 Barn. & Aid. 29, Spalding v. Moore, 6 Term Rep. 363. The same doctrine results, by strong inference, from cases, which have decided, that a surviving partner'isay- bring an action, in his own right, against a person, who has received money after the death of his co-partner. Smith v. Barrow, 2 Term Rep. 476. Bernard v. Wilcox, 2 Johns. Ca. 374. If it had been received before his death, the survivor must have sued in right of the co-partnership, and declared in a join! pause of action. It appears, that a contract was made, by the defendant, with the heirs of C. W. Apthorp, for the purchase of land, under which -he entered, and occupied for a number of years. From these facts, it is impossible to infer an agreement to pay for the use and occupation of the land. Expressum facit cessare taciturn. The jury, however, were instructed, if the defendant was the sole- cause and occasion why the contract of purchase was not carried into effect, that the plaintiff would be entitled to recover. On this point, the charge was incorrect. The refusal of the defendant to perform his contract, neither rescinded it, nor authorized the plaintiff to consider it as at an end. A part of the sum stipulated, the defendant had paid ; and after enjoying the property a number of years as a purchaser, he, of his own accord, abandoned it, and the plaintiff afterwards entered into possession, This did not annul the contract; but it remains open, notwithstanding; ahd on this unrescinded engagement alone, can the plaintiff found his suit. Weston v. Downes, Doug. Rep. 23, 4. Whiting v. [209] Sullivan, 7 Mass. Rep. 107. Smith v. Stewart, 6 Johns. Rep. 46. Bancroft & wife v. Wardell, 13 Johns. Rep. 492. 1 Chilt. Plead. 342. Cooke v. Munstone, 1 New Rep. 351. Hunt v. Silk, 5 East's Rep. 349. Payne v. Whale, 7 East's Rep. 274. For these reasons I would advise a new trial. The other Judges were of the same opinion, except Bristol, J., who dissented. New trial to be granted.