Crosby v. New London, Willimantic & Palmer Railroad

Storks, C. J. If the other objections to the plaintiff’s recovery are untenable, we are of the opinion that the defendants are entitled to judgment, on theiground that the plaintiff’s claim to interest arises solely on the bond executed by the defendants, and that that instrument does not support the declaration in this case. That this bond would be the foundation of the plaintiff’s claim, independently of the interest-warrants which were attached to it, Would admit of no question. Here the plaintiff’ attempts to support the declaration by those warrants. But, in order to do this, it is necessary that they should be instruments' of such a character that they would, of themselves, support an action. We are by no means prepared to say, that if these warrants were executed collaterally to the bond, and imported a promise to pay the interest at the times it accrued, they would not themselves sustain an action brought specially upon them, or be evidence under a general indebitatus count in an action of debt. But this is not their character, nor is such their import or design. No promise is expressed in them, nor, when they are considered, as they should be, in connection with the bond, can any be properly implied. The bond acknowledges a certain indebtedness, payable at a certain time, “ with interest thereon, at the rate of six per cent, per annum, payable half yearly, on the first day of February and the first day of August in each year at the office of [the defendants] in New London, on delivery of the annexed warrant therefor.” A separate warrant, similar in its form .to those produced on the trial, for the amount of each of the installments of interest which would, by the terms of the bond, accrue on it, and designating the time when it would be payable, was annexed [126] to the bond, which styles itself an “ interest warrant ” on a “ mortgage and convertible bond,” for thirty dollars, which it states to be half yearly interest on a bond, of which the number is given, of the New London, Willimantic and Palmer railroad corporation, on a particular day named, and is signed by the treasurer of said corporation. From the form of these instruments, and the provision in the bond requiring that they shall be delivered to the defendants when the interest is paid, we think that it is plain, that they were not intended to be an additional or collateral promise or security for the payment of such interest, but that they were devised only as a convenient and safe voucher of a particular form, furnishing evidence of its payment, while perhaps they may also have been designed for the convenience of the holder of the bond, to supersede the necessity or trouble of presenting the bond itself when the interest on it should fall due. Hence no action can be sustained on them as instruments or promises. Considered as admissions, it will be seen that they imply no indebtedness generally, but only an acknowl-. edgement of a liability on the bond, and it is quite clear that an admission of such a liability or indebtedness lays a foundation for no action except on that instrument. The plaintiff’s cause of action being founded on the bond, it was plainly necessary for him to declare on it. It is a principle too familiar to require authorities, that when a cause of action is founded immediately upon any stipulation in a deed, the deed must be pleaded, that is, described or set out in the declaration. The only exception to be found to this rule, if indeed there be any, is the case cited by the plaintiff, of debt for rent reserved upon a lease by deed, where it is said the deed need not be declared on; but that rests on a peculiar ground which has no application to the present case. Atty v. Parish, 4 Bos. & P., 109. The only plausible ground on which it can be claimed that the plaintiff is entitled to recover in this case, is, that although the rules of pleading require that a deed, where the cause of action is founded on it, should be stated in the dec [127] laration, an omission to do so is only a defect of form for want of particularity, of which advantage can not be taken on the trial under the general issue; that the allegation of the indebtedness of the defendants, although it is made in a general form and does not state the particular manner in which it arose, is nevertheless true, and that it is proved by the production of the deed on which it is founded. This precise question was involved and decided in the case of Atty v. Parish, just referred to, where the declaration was in debt, and alleged in the most general form like the present, that the defendant was indebted to the plaintiffs in a certain sum of money, for the carriage of divers goods, conveyed in divers ships, from and to divers places, for the use and hire of divers ships, from and to divers places, and for the demurrage of divers other ships employed by the defendant’s testator. The plea was nil debent, and on the trial the plaintiffs, after proving the carriage of the goods of the defendant’s testator and the detention of the plaintiff’s ships, gave in evidence a charter party under seal, entered into between them and the defendant’s testator, to ascertain the amount agreed upon for freight and demurrage; whereupon it was objected that the plaintiffs had not declared upon the charter party, and it was decided that a non-suit should be entered on the ground that the declaration was not supported by the charter party. The plaintiffs’ counsel admitted on the argument, that in the case of a bond the declaration must state the bond, but endeavored to distinguish that from the case at bar, and urged that in the latter the issue was, whether the defendant’s testator was indebted or not, and that the plaintiffs supported the affirmative of that issue by the deed; but Chambre, J., interposed the remark, that the declaration imported nothing more than a parol agreement, and the issue was, whether the defendants were indebted in the manner therein alleged. This remark, in our opinion, embodies the true answer to the argument, and indicates the ground upon which the decision in that case obviously proceeded, although it is not stated in those terms by Ch. J, Mansfield in giving the opinion of the court. [128] The difficulty is, that the indebtedness described in such a general count is different in its character from that evidenced by deed. As stated by Judge Gould in his treatise on pleading, (Ch. IV. sect. 44, n.,) the reason why, in an action founded on a deed, the deed must be pleaded, is, that the deed itself necessarily enters into the description of any stipulation contained in it. Therefore an obligation by deed is not truly described if it is not stated to have been made by deed. Hence, as a general indebitatus count in debt states no deed, it imports only an agreement by simple contract. Accordingly Mr. Stephen, in his work on pleading (p. 43,) prescribes that as a precedent for a count in debt on simple contract, after having given one in debt on a bond in the usual form declaring on the deed. This is the light in which such a general count has always been considered. We therefore advise judgment for the defendants. In this opinion the other judges concurred. Judgment for defendants advised.