Gaylord v. Payne

Hosmer, Ch. J. It is a general rule in pleading, that whatsoever facts are necessary to constitute a cause of action, must be stated in the declaration, with such precision, certainty, and clearness, that the defendant, knowing what he is called upon to answer, may be able to plead a direct and unequivocal plea, and that the jury may be enabled to give a complete verdict on the issue. 1 Chitt. Plead. 216. 255. It, likewise, is equally well established, as a principle of construction, that every thing shall be taken most strongly against the party pleading, on the intendment, that every person states his case as favourably for himself as possible. 1 Chitt. Plead. 241. From these rules it necessarily results, if the wife be joined in an action with her husband, that her interest or liability must explicitly appear from the declaration, and may not be assumed, unless by necessary inference. 1 Chitt. Plead. 20. Serres & ux. v. Dodd, 2 New Rep. 405. The contract on which the plaintiff has founded his action is alleged to have been jointly made by the defendants; and without resort to the rule of construction before stated, and by a reasonable intendment only, the allegation means, that the husband, and wife, and the other defendants, after her marriage, entered into an engagement with the plaintiff. On the principle of construing the declaration most strongly against the plaintiff, there can be no doubt, that the agreement was made by a feme covert. If it were not, the plaintiff should have averred, that the wife assumed, when sole and unmarried, and not that she, her husband, and others, jointly became indebted. 2 Chitt. Plead. 50. In an avowry, by the [195] husband, for rent arising from the land of his wife, it was determined, in Decker v. Livingston, 15 Johns. Rep. 479. that “unless it appear affirmatively, that the rent in question accrued after the intermarriage, the court cannot intend the fact to be so.” 1 Chitt. Plead. 7. The contract declared on, will not sustain an action against the wife; and the case rests on the same foundation, as if, in point of fact, she made no agreement with the plaintiff. The contract then is not truly declared upon; but the allegation and proof are necessarily at variance with each other; and in the suit there is included one defendant, who was not a party to the alleged promise. In an action ex contractu against several, it must appear on the face of the declaration, that their contract was joint; and if too many persons are made defendants, and the objection appear on the pleadings, either of the defendants may demur, move in arrest of judgment, or support a writ of error. 1 Chitt. Plead. 31. The defect is fatal and incurable. Notwithstanding this, it has been insisted, that the award of auditors, attributing to it the force of a verdict, has worked a cure. It may be replied conclusively, that the award infers no facts, except those apparent, directly, or by implication, from the plaintiff’s declaration; and if the facts are presumed to have existed, in conformity with the plaintiff’s supposition, they present a most fatal error, to the existing suit against the defendants. What is the effect of a verdict, or award of auditors? It supplies no title or right of action wholly omitted; because every such matter being traversable, it must be alleged, that it may be put in issue. If a title is set out in the pleadings, by a defective statement, the defect is cured by verdict; in support of which, the court will intend, that it was supplied by evidence; but if the ground of action alleged evinces, that the plaintiff has no title, this is beyond the possibility of aid. On so trite a subject, a recurrence to cases is unnecessary, and would almost border on impertinence. 7 Bac. Abr. 42. tit. Verdict. X. The fact, which, the plaintiff contends, ought to be presumed, after the award of auditors, is this; that the agreement declared on, was made by Rachel Payne, when she was a feme sole. This inference would set up a fact, wholly omitted in the declaration, not to be implied from any of the facts stated; (1 Wms. Saund. 228. note 1.) and in opposition to the plaintiff’s averments. The title alleged, is founded on a contract, made by Rachel Payne, [196] when a feme covert; and the one presumed, would be of an agreement made by her, when a feme sole. But if the inadmissible inference were made, it would demonstrate a fatal and fundamental error. A contract made by Rachel Payne, a feme covert, and the other defendants, is materially variant, from one entered into by the same persons with the other defendants, when she was a feme sole. In the former instance, she never could have obliged herself; nor, in legal contemplation, have made any agreement with the plaintiff; while, in the latter, she would have contracted in a valid manner, and her husband, one of the defendants, would be responsible, not as party to the engagement, but by virtue of the marital relation. In the one case, the number of defendants would be too great; and this error is utterly incurable; (1 Chitt. Plead. 31.) and in the other, the contract would be fatally misdescribed. The reversal, in this case, cannot be in part, but must be in toto. When the judgments are distinct, the court may reverse in part, and affirm in part; but if the judgment is entire, there must be a total affirmance or reversal. 2 Wms. Saund. 212. a. in note 4.-Richard & Finney v. Walton, 12 Johns. Rep. 434. Arnold & al. v. Sandford, 14 Johns. Rep. 417. 425. Superadded to this observation, conclusive as it is on the case before the court, it appears, that the plaintiff has declared on a contract, which never existed; and the ground of his suit is incurably erroneous. The other Judges were of the same opinion. Judgment affirmed.