Sage v. Hawley

Storrs, J. The first ground on which a new trial is asked in this case is, that the proof adduced by the plaintiffs did not support the declaration as to the item of eighty dollars therein mentioned, and that the jury should have been so instructed : and the particular in which it is claimed to have been defective, is, that it failed to prove the mistake as to that item to have been of the precise sum, and to have occurred at the precise time, alleged in the declaration. The validity of this claim depends on the question whether the statements in the declaration, of the particular time of the settlement when the alleged mistake occurred, and of the particular amount of the sum due to the plaintiffs and not embraced in such settlement, are to be deemed allegations of what are termed matters of substance, or of matters of description. If they are of the former kind, they need only to be proved substantially ; if of the latter, they must be proved exactly. We have no doubt that the averments in question are those of matters of substance, and not of description ; and therefore, that they were supported by the evidence offered by the plaintiffs. The true sense and meaning of the allegation respecting the settlement, is no more than that such a settlement took place between the parties ; and of that respecting the indebtedness, merely that there was an indebtedness from the defendant to the plaintiffs omitted to be embraced in such settlement. The time of such settlement is immaterial, provided it took place — 111 — at any time prior to the commencement of the suit, which must be proved on the trial ; and the precise amount of such indebtedness is unimportant to the maintaining of the action ; it is sufficient that any such indebtedness exists; and its amount must also be proved on the trial. The additional statements of a particular day when the settlement was made, and a particular amount of indebtedness, are mere formal averments, and were obviously introduced, not for the purpose of more particularly describing the settlement or indebtedness, or of defining more precisely the cause of action, (for much more minuteness would have been requisite for that purpose.) but only in order to comply with the familiar rules of pleading on the subject of certainty, which require that a time and place should be mentioned when and where every material fact took place ; and that where a material sum or quantity is mentioned, its amount should be specified. Those rules undoubtedly made it necessary for the plaintiffs to state, as matter of allegation, some particular amount of indebtedness from the defendant to the plaintiffs, and (on the supposition that the general indebitatus count would not answer, but that it was necessary to declare specially, as the plaintiffs have done here, averring the settlement and the mistake,) some particular day on which such settlement took place. This particularity was requisite, in order to render the declaration, as matter of pleading, unexceptionable ; but, by the rules of evidence, allegations of time, place, sums and quantities need not be proved precisely as laid, unless they are so descriptive of something which is essential to the claim of the party averring them, that the identity between the thing alleged and proved would be thereby destroyed, and the proof be subject to the imputation of what is termed a variance ; which the defendant has very properly disclaimed in the present case. The principles applicable to this point are too familiar to require illustration, and will be found to be very clearly stated and elucidated, in Purcell v. Macnamara, 9 East’s R. 157. and in Greenleaf’s Ev. Part 2. chap. 2. Our courts, many years since, held, that an action of general indebitatus assumpsit would not lie, after a settlement of accounts, to recover for an item of indebtedness omitted by mistake in such settlement ; but that the declaration should be special, pointing out such mistake. And it is urged, by the — 112 — defendant, that as the cause of action must be thus particularly stated, a corresponding particularity of proof is necessary, in order to secure to him the benefit intended by requiring this mode of declaring. The rule that allegations of matters of description only need be exactly proved, applies, however, to all declarations in personal actions, and is not confined to those only where the allegations are of a general character, like general indebitatus assumpsit : and that rule of evidence was not intended to be varied or affected, by the decisions last referred to, which went upon the ground that, unless the declaration was special, the defendant would be unapprized by it of the character of the claims made upon him, and would be therefore liable to be surprised on the trial, by proof of those of which he had had no notice. The range of the plaintiff’s proof is, of course, more restricted, as the declaration is more special ; but the nature or competency of the evidence to prove the issue, is not thereby affected ; and the present is a question of evidence, and not of pleading. Notwithstanding, however, the decisions referred to, we should, in accordance with the doctrine which universally prevails elsewhere, and the principles at present generally applied to actions of general indebitatus assumpsit, now hold, that a general indebitatus count would sustain a recovery for items of indebtedness omitted by mistake on a settlement of accounts, if there were no other objection. Without going at large into the subject, it may be sufficient to say, that, at the early period when those decisions were made, the general counts in assumpsit were comparatively rarely used ;—their utility and safety had not been completely tested in practice ;—and they were, therefore, regarded with a greater degree of jealousy and disfavour than at present ; and with more than long experience since has shown to be necessary. The apprehended disadvantage to the defendant from the generality of the count, is entirely obviated, by the practice of allowing him to require a bill of particulars from the plaintiff ; and indeed, as remarked by Ellsworth, J. in Clark v. Smith, Kirby’s R. 130. this kind of action, from the equity of the principles on which it proceeds, and the extensiveness of the remedy it gives, is now highly favoured. The other ground on which the defendant claims a new trial, involves the true construction of that proviso in the — 113 — statute of limitations, which excludes from the computation of the times limited for bringing suits in the cases therein mentioned, the time during which the party, against whom there may be any such cause of action, shall be without this state. The material facts which appear, bearing on this point, are, that the defendant, being a citizen of and domiciled within this state, and residing therein, with his family, consisting of his wife and several children, publicly left the state, at two successive times, and went to one of the Southern states, where he remained each time for the period of about eight months, for the purpose of taking charge of a store of goods there, and attending to the business of said store ;—and that he so left for the purpose of a temporary absence only, and with the intention of a speedy return to his residence in this state, where he left his family during his absence, and without abandoning, or intending to abandon, his home or domicil in this state ; and that he continued his intention of returning during his said absence. And the question is, whether the time during which he was so absent, should be excluded in computing the six years limited for the bringing of this suit. The judge below proceeded on the ground that the defendant was, during said absences, personally out of this state, and so, during that time, within the very language of the proviso of the statute; and did not feel at liberty to depart from its plain literal meaning. A construction of this proviso, which should be so literal as to exclude, in all cases, from the computation of the time limited for bringing suits, every portion of time, however small, during which a person domiciled in the state should, with whatever intention, be personally absent from it, would be attended with such practical inconveniences, and would indeed fall so far short of the object to be attained in the passing of the law, that we cannot believe that it would be consonant with the intention of the legislature, which, when ascertained, must prevail over the literal sense of the terms they have used. The intercourse between our citizens and the other, especially the adjacent states, on matters of business, health and pleasure, has become so general, and the absences resulting from it are frequently for so short periods of time, and those often so sudden that they can scarcely be anticipated by themselves or others, that it would be impracticable to ascertain or prove them, with any ordina — 114 — ry, if indeed with the greatest, degree of diligence ; and we think, that it would be doing violence to the intention of the legislature to suppose, that the proviso was enacted with reference to these casual and temporary occurrences. Indeed, the construction claimed by the plaintiff, would exclude from the computation those comparatively minute periods of time, during which that large class of our citizens living in towns bordering on other states, should be engaged in the adjacent towns in those states, in attending perhaps to portions of their farms there situate, or to those almost daily matters of business which would call them thither. And with respect to another considerable class, who are engaged in a sea-faring life, and therefore have occasion to be away from the state for much longer periods in the prosecution of their business, such construction would also exclude these periods. But it has never been supposed, that our statute of limitations has been suspended, by such absences. Although it would be competent for the legislature to provide, that the computation of the times limited for bringing suits should be interrupted, by absences of these descriptions, we think, that the language of the act should be much more explicit than that used here, before we should be required to infer such an intention. The great object of the statute of limitations, enacted on motives of public policy, as well as to protect private rights, was to silence stale claims, or prevent the enforcement of those where the failure of the memory of witnesses, or their death, or the loss of other evidence, might defeat justice, or at least render its administration uncertain and hazardous, by requiring claimants to lay the foundation, by a suit, for bringing their demands to a legal adjudication, within such reasonable period of time that these consequences would not probably ensue. Hence it is provided, by that statute, that the actions therein mentioned shall not be brought but within the times therein limited, after the right of action shall accrue. The bringing of a suit, which is the commencement of a legal proceeding for an investigation and decision of the claim, is the act which is intended by the statute to be expedited, and that by subjecting the plaintiff to the loss of his claim, in case he shall have neglected to prosecute it within the prescribed time. But it was obvious, that there might be cases where, — 115 — although a suit should be seasonably commenced, the object of it would be frustrated, without any such fault on his part as should subject him to a forfeiture, or loss of his demand ; and others, where there would be an entire omission to commence a suit within the time limited, without the least fault or neglect on the part of the claimant, and where the principles of natural justice would therefore plainly require that his rights should be saved. In the former class, for instance, the legislature have included those cases where a judgment obtained by a plaintiff has been reversed on writ of error, and also those where, after a verdict for the plaintiff, on a motion in arrest, judgment is given against him that he take nothing by his writ or declaration ; in which cases a further time is allowed, by the eighth section, for commencing a new suit. In the latter class, are embraced, among others, those cases where the situation of the defendant was such that it was impossible to commence a suit against him, in which the rights of the parties could be effectually determined. To preserve the rights of the plaintiff in such a case, the proviso in question, and which is contained in the same section, was, in our judgment, intended. It provides, that "in computing the time limited in the several cases aforesaid, the time during which the party, against whom there may be any such cause of action, shall be without this state, shall be excluded from the computation.” Stat. p. 406. § 8. (ed. 1838.) Considering this provision as being designed to protect the rights of the plaintiff, in those cases where it was not practicable for him to enforce them, by a suit, in consequence of the absence of the defendant from the state, its justice and propriety are most obvious. But it is not necessary, nor does justice seem to require, that we should extend it by construction, so far as to include in the computation of the time limited for bringing suits, those periods when the defendant was personally out of the state, but during which the plaintiff might, notwithstanding, have commenced a personal action against him, by the judgment in which he would be conclusively bound ; and especially, in view of the difficulties already adverted to, which would follow from such a construction. If the defendant is not domiciled, or has not his residence within this state, no action can be brought in his absence against him, by the judgment in which he would be personally bound, because — 116 — there would be a want of legal notice to him of the suit ; although it would be in the power of his creditor, if the property of such defendant, or debts due to him within the state, are discovered, to proceed against them specifically or in rem, under our statutes of foreign attachment, and appropriate them on the judgment which should be obtained. That, however, would be the extent of the operation of the judgment. Since therefore, in such a case, it would not be in the power of a creditor to institute any legal proceedings, by which his legal rights could be conclusively ascertained and fixed, it would be manifestly unjust to preclude him from such proceedings, whenever it should be in his power to commence them. But if the defendant is domiciled or resident within the state, although he may be temporarily absent therefrom, provision is made by our laws, by which the plaintiff may commence a personal action against him, in which a judgment may be obtained, which will be binding and conclusive between the parties to all intents and purposes ; and therefore, in such a case, no saving of the right of the plaintiff to commence such suit is necessary. Looking at the policy and provisions of the whole act, a majority of the court are of opinion, that the provision in question does not apply to the temporary personal absence from the state of a defendant domiciled within it, and retaining that domicil ; but that it embraces those cases only, where the defendant is without the state, under such circumstances that a personal suit cannot be commenced against him ; and therefore, that the time during which the defendant in the present suit was absent from the state, under the circumstances stated in this motion, ought not to have been excluded in computing the time limited for the commencement of the suit. So little light is shed upon the statute in question, by the statutes in other states of a similar character, which have been adverted to, the phraseology, if not the policy, of which appear to be different from ours, that it is not considered necessary to remark upon them. We are of opinion, for these reasons, that on the last ground urged, a new trial should be granted. In this opinion Church, Waite and Hinman, Js., concurred.