Raymond v. Sturges

Storrs, J. The first question in this case is, whether the declaration sets out a good cause of action. It states, that the defendants, having brought a petition to the superior court for the foreclosure of a mortgage of a certain piece of land, therein described, which had been exe [144] cuted to them by the plaintiff, to secure a note given by them to him, it was agreed between the plaintiff and the defendants, before the decree was passed thereon, that the time for redeeming the mortgaged property should be limited to the first Monday of January, 1851, but that the defendants procured a decree thereon, that it should be redeemed previous to said last mentioned day, viz., on or before the first day of January, 1851, and that, after said decree was passed, the defendants falsely and fraudulently, and for the purpose of preventing the plaintiff from redeeming said mortgaged premises within the time so limited for that purpose, represented to the plaintiffs, and thereby induced them to believe, that the time so limited was the first Monday of said January: that, under said belief, and under an agreement between the plaintiff and defendants, made after the first day of said January, that the plaintiff might redeem on the said first Monday of January, the plaintiff omitted to redeem said land, until after said first day of January, but was prepared and offered to the defendants, to do so, on the said first Mond'ay of January, and on that day tendered to the defendants the amount due on said mortgage, which they refused to receive, and that, by means thereof, he was foreclosed from redeeming said premises, and that, in order to have the foreclosure opened, and to obtain the privilege of redeeming, he was obliged to and did bring his application therefor, to said court, by which said decree was passed, on which he was allowed by said court to redeem said premises, and that, in consequence of said wrongful conduct of the defendants, he was, in the prosecution of said application, subjected to great expense, trouble, vexation and loss of time. No other facts are stated in the declaration, which qualify or detract from the full force and effect of these allegations. That these facts disclose a legal cause of action, there can be no doubt. They present a sheer case of fraud practiced by the defendants, on the plaintiff, by means of false representations, in consequence of which the latter was prevented from avail [145] ing himself of his right to redeem his property, and was therefore put to great trouble and expense, in his application for relief against the effect of such fraud, beyond his taxable costs on said application. For such trouble and expense the plaintiff can obtain no redress, unless in an action like the present, since it was not competent to the court to which that application was brought, to decree damages to him therefor. Jurisdiction for the recovery of such damages appertained, not to that court, but to a court of law. They constituted a legal, as contradistinguished from an equitable, claim, and are recoverable at law, in an action on the case, as in ordinary cases of damage sustained by one person in consequence of a fraud practiced on him by another. The declaration, therefore, shows a good cause of action. The remaining question is, whether it is bad for duplicity. The particulars in which it is stated, in the special demurrer, to be double, and which only we can consider on a demurrer for this cause, are, that it sets up, 1. That the defendants enforced the execution issued on their judgment in the ejectment suit mentioned in it; 2. That they sold the personal property of the plaintiff, on said execution; 3. That they violated their promises to the plaintiff; and 4. That they deceived and defrauded the plaintiff. That the declaration states a good cause of action, on the last mentioned ground, has been shewn. Whether any other is sufficiently set forth in the count, so that a judgment on it would be sustained on a writ of error, is very questionable. Perhaps, however, under the rules respecting duplicity, if the plaintiff has sought to recover for any other cause of action in that count, it would be no answer to that objection, that it is so imperfectly set forth, that, if it constituted a distinct count, it would be demurrable. But we have not considered it necessary to examine these questions, because we are of opinion, that if any other cause of action is so stated in this count, that it would not be exceptionable either in substance or form, if contained in a distinct count, there is none so intro [146] duced into this declaration as to render it liable to the objection of duplicity. In order to constitute duplicity, it is not sufficient that a count, in a declaration, shews merely that the plaintiff has various causes of action against the defendant, although the contrary might be inferred from the general and loose definitions of duplicity, in some of the elementary treatises on pleading. It is necessary, further, that those various causes of action, or more than one of them, should be claimed and relied on, as distinct grounds of recovery. Dyer, 42, b. Stephen on Pl., 302. For, if it appears, that the plaintiff seeks to recover upon only one of them, and makes no claim on any of the others, as a distinct, additional, or independent ground of recovery, the mere circumstance that he has other valid claims against the defendant, which he might, but does not, seek to enforce in the suit, ought not to deprive him of a recovery on the cause of action, on which alone he seeks to recover. And, in such a case, there can be no multiplicity of issues, to avoid which duplicity is discountenanced. Nor is the introduction of facts in a count which would constitute a distinct cause of action, considered as duplicity, whev.e such facts are stated, not as a ground of recovery upon them, taken by themselves, but only as constituting part of the entire facts, or cause of action, on which the plaintiff relies for a recovery. . Accordingly, in Bac. Ab. K., 2, duplicity is laid down to be, “ Where distinct matters, not being part of one entire defence,” or, it might be added, ground of recovery, “ are attempted to be putin issue.” The defendant cannot distort, or vary the claim, which the plaintiff has chosen to make, whatever it is, in order to raise an objection to it. Nor does the statement of immaterial matter, in a declaration, make it double. Steph. Pl., 301. It is very common for the plaintiff, especially in actions ex delicto, in connection with the facts on which he claims to recover, to state matters, from which it appears that he has another cause of action against the defendant, either by way of amplifying, or [147] strengthening his description of the cause of action on which he relies ; or, perhaps, from a mistaken idea that it is necessary to state, not only the main facts constituting his claim, but also the evidence of those facts and their attending circumstances ; or to shew the extent and aggravated character of the injury of which he complains; but the statement of these matters being unnecessary and immaterial, it has never been considered that they rendered the declaration double, where it was apparent that he did not rest his claim to recover, upon them. On an examination of the declaration in this case, we are satisfied that the claim of the plaintiff ought to be considered as founded on the fraud and deceit, practiced on him by the defendants, in regard to the time limited for the redemption of the premises mortgaged by the plaintiff, and that, the statement of the other matters, which are claimed by the defendants, as setting up other causes of action, was made, not with a view of introducing any new or. distinct ground of recovery, but only for the other purposes which we have mentioned. The conduct of the defendants, under their execution, in dispossessing the plaintiff of his land, and levying on his personal property, and the violation by the defendants, of their promises, are evidently not introduced as distinct and independent causes of action, but for the purpose of shewing the original fraudulent scheme of the defendants, the manner in which they carried it into effect, and the extent, and character of the injury inflicted on the plaintiff. The objection of duplicity is therefore unfounded, and there is no error in the judgment complained of. In this opinion the other judges concurred, except Hinman, J., who was disqualified. Judgment affirmed.