Lamphere v. Cowen

The opinion of the court was delivered by Peck, J. The declaration in the original writ contained no ad damnum, and such was the condition of the copy- of appeal when entered in this court. The declaration was in usual form in general assumpsit for money 'paid, alleging an indebtedness of the defendant to the plaintiff to the amount of $200. A writ and declaration, wanting in nothing but an ad damnum, is amendable in that particular, and the amendment was properly allowed. The plaintiff seeks to recover the amount of the two notes which he and his son executed, one to Quimby and the other to Kenyon, which were given for one-half of the debt which the parties to this suit owed Quimby and Kenyon. To show that, as between the plaintiff and defendant, it was the duty of the defendant to pay these notes, the plaintiff introduced an award between himself and the defendant, dated'December 5, 1865, by which it appears that the arbitrators, among other things, awarded that whatever debts against the firm (referring to the firm of plaintiff and defendant) should thereafter be collected of, or paid by, said Lamphere, he should have a claim against said Cowen for. The notes in question were dated in December, a few days after ’the date of the award, but before its publication. It is objected on the part.of the defense that this claim can not ,be collected in the action of general assumpsit. Where a case has been tried upon the merits in this general form of action, the supreme court will not entertain an objection of this < character, where it is apparent that the judgment, if affirmed, will be a protection to the party in reference to the matter actually'litigated, [181] unless the. objection’is raised in the county court. The party can not go on without objection and take'his chance of a.'trial upon the merits, and afterwards object that' the action should have been special. The general objection- to the admission of the award, and exception to the ruling- of the court admitting it, is not sufficient to raise this question. It does not apprise the court or the opposing counsel that the objection'is to the general character of the declaration. Nor does the request of the defendant to charge the jury that the plaintiff can not recover in his action of general assumpsit without first having given notice that he had a claim for "money paid, and demanding payment. This only raises the question of the necessity of proof of notice and demand before suit. It does not amount to an objection that the declaration should have been special instead of general. It is for the furtherance of justice to require technical objections of this character to be raised in the county court, where they may be obviated by amendment before the expense of trial, as often they may be. This question, not being raised -in the county court, is one upon which we express no opinion-. The question as to the necessity of notice is presented, upon which some good reasons have been urged on both sides. It is a general rule in assumpsit that when the event on which the defendant’s duty arises, and the plaintiff’s right accrues, is peculiarly within the knowledge of the plaintiff, the defendant is entitled to notice of the event before suit. This rule implies that the defendant without fault or neglect on his part is ignorant of the happening of the event; and without other means, than from the plaintiff, of readily informing himself. The decisions on this subject show that this rule does not embrace all cases where from the nature of the event the plaintiff necessarily must have knowledge of it, and the defendant not likely to know when fit happens ; nor does the mere fact that the plaintiff has better means of learning of the '• event than • the defendant, necessarily bring a case within the rule. This rule must be construed in connection with another rule ; that “ no one is bound by the law to give notice to another, of that of which that other person may otherwise inform himself.” 16 Vin. Ab., Tit. Notice, 5. Both are general [182] rulos and the difficulty is in the application of them. Where the duty accrues upon the private act of the plaintiff, .there ought to be notice in assumpsit; but not where the defendant may easily inform himself otherwise. As in Smith v. Goff, 2 Salk., 457, where H. was indebted to the plaintiff in thirty pounds by bond, and the defendant promised the plaintiff if he would give up. the bond to H. he (the defendant) would pay the thirty pounds to the plaintiff; the plaintiff gave up the bond to Iff.; held, “ There needs no notice, because the defendant, knew whom to resort to ; and the difference is, where a person is named, and where not.” So in this case, the defendant might have resorted to Quimby and Kenyon, whom he knew held the notes against, the plaintiff, and learned .of the payment. In Vyze v. Wakefield, 6 Mees. & Weis., 442, where this subject was much discussed, Lord Abinger, C. B., sums up the matter thus: “ The rule to be collected from the cases seems to be this, that when a party stipulates to do a certain thing in a certain specific event .which may'become known to him, or with which he can make himself acquainted, he is not entitled to notice unless he stipulates for it, but when it is to do a. thing which ' lies within the peculiar knowledge of the opposite party, then notice ought to be .given him.” I understand the last branch of the proposition of Lord Abinger to mean, “ when it is to do a thing, ‘ in an eventf which lies within the peculiar knowledge,” etc. ¡This seems to be a sensible and satisfactory interpretation of the cases on this subject.. The question is, within, which branch of this proposition the case at bar falls. The defendant knew of the existence of these debts, and the amount, and to whom due. He knew that by the award, as between him and the plaintiff, it was; his (the defendant’s) duty to pay them. Knowing the particular’ persons to Whom the debts were due, he had the means of readily-learning by inquiry of them whether the debts had been paid ;• and before the plaintiff paid, he might at any time have made the payment to Quimby and Kenyon, to whom the debts were due. We think, in view of the whole matter, the. case falls within that branch of the rule which dispenses with notice when the defendant has other means at hand of acquiring the information from a definite known source. [183] It is claimed by the defendant’s counsel that as these company debts to Quimby and Kenyon were settled in the manner they were, after the submission and before the award was published, they must be regarded as settled so that they cannot be considered as included in the debts the defendant was by the award to pay. Under the charge of the court the defendant has had the full benefit of this proposition, upon the supposition that the jury might find that the settlement with Quimby and Kenyon was intended as a settlement of these demands as between these parties. But the jury have found upon the evidence the contrary. They have found that these debts were before the .arbitrators, and included in the demands the defendant was awarded to pay; and that the arrangement of these debts with the creditors, as stated, was not intended by these parties to change their duties and obligations as between themselves in respect to them. This finding of the jury is decisive of this point against the defendant. It appears that in the award there was a provision by which the defendant was awarded to pay a certain sum of money. The plaintiff has brought an action upon that part of the award and recovered judgement for that specific sum so awarded. The defendant insists that the giving of the notes by the plaintiff to Quimby and Kenyon, in full discharge of the plaintiff on these company debts, was a payment; and as this was done before the former action was commenced on the award, that .recovery is a bar to this action. The claim is that the plaintiff was bound at his peril to include in that action this demand. But it is not like bringing an action and recovering a part of an entire demand, and afterwards seeking to recover the residue in a second suit. The award was divisible.. The provision for the absolute payment of the specific sum of money was distinct from that now in question relating to the payment of the outstanding company debts. The plaintiff was not bound to treat the execution of the notes to Quimby and Kenyon as a payment, and to sue for it in the former action, which was upon a separate and distinct part of the award. We find no error in the ruling of the county court. The judgment of the county court is affirmed.