New York Breweries Corp. v. Baker

Hamersley, J. The sales in question being made in New York, it was not necessary for the plaintiff to take out a license to sell liquors in this State ; nor to inquire whether the license for which the defendant paid and under the protection of which she carried on her business, should have been issued to her as executrix rather than to her individually, or to her business manager. In State v. Ascher, 54 Conn. 299, it was held that § 3078 of the General Statutes prohibits any person acting as agent of a merchant doing business in another State, from procuring in this State orders for liquors, although such orders are to be filled by a delivery of the property out of the State, unless such person shall be duly licensed, and that for police purposes the statute calls such acts of an agent a sale by him, and therefore an offense; but it was not held that the statute prohibits a foreign brewer from making a special or exclusive business arrangement with a Connecticut firm for the purchase and sale of his ales, unless the foreign brewer becomes a licensed dealer in this State. Such a con [342] struction of the statute is plainly untenable, and should not be adopted, even if some language of the opinion in State v. Ascher could, as claimed by the defendant, be treated as favoring the construction. Section 3114 of the General Statutes provides that no action of any kind shall be maintained for the price of intoxicating liquors sold in any other State with intent to enable any person to violate any law of this State relating to the sale of such liquors; and if the plaintiff had sold the ales in question with such intent, it could not recover in this suit. Counsel for the defendant seem to claim that the real gist of the transactions between the plaintiff and defendant was a scheme for enabling the plaintiff to sell its ales in this State without paying the license fee required by law of all persons selling in this State; and that the defendant was a mere go-between or agent of the plaintiff, through whom the plaintiff, without a license therefor, sold, in form in New York, to the defendant, but in reality in this State to the nominal customers of the defendant. Whether this claim is regarded as based on inferences of fact or law, it is in direct conflict with the facts found by the trial court, and there is nothing in the record to give it any substantial support. We notice that the plaintiff, after properly stating its cause of action, has used the form of complaint called “ the common counts,” as a separate count in its complaint. The common count, as used in common law pleading, is forbidden by the Practice Act. It was a form of action founded on a promise that might never have been made. The real cause' of action, viz, a legal duty unperformed (as the duty to repay money loaned, or to pay the price of goods bought, etc.), was stated in the most general way as an inducement to the nominal foundation of the action, which was the fictitious promise, so that if the false statement—“ in consideration thereof (i. e. of the duty to pay the plaintiff the amount due), the defendant undertook and faithfully promised the plaintiff to pay,” etc. were omitted, notwithstanding the actual cause of action might be stated, a judgment by de [343] fault would have been reversible on writ of error. Lee v. Welch, 2 Str. 793. This count was used at common law in four forms, but the indebitatus count, under our practice, was ordinarily used for all; and as the various grounds of indebtedness were alleged as inducement to the fictitious promise, several such grounds might be stated in one count; the promise they are supposed to have induced constituting only one cause of action. Such pleading is impossible under the Practice Act, and the common counts, either singly or grouped in one count in indebitatus assumpsit, can never be used. The form of complaint called “ The Common Counts ” (Form 85), states separately nine causes of action, but does not contain a single common count at common law; the real cause of action in each count is directly stated, and the fictitious promise, without which the common law count is fatally defective, cannot be stated. Form 85 however, except for the rule of court (Rules under Practice Act, II., § 1), would be demurrable; it does not state “the facts constituting the cause of action,” with the completeness nor with the particularity required by the Practice Act. This sufficiently appears, by comparing the several counts contained in the form, with the forms given elsewhere in illustration of the proper manner of stating these causes of action. (As for instance, compare count 1 with form 1; count 2 with forms 200, 201, etc.) This incomplete form of complaint was allowed, as stated in the prefatory note to the Practice Act, “as a mode of instituting an action,” and, as stated in the rules of court, “for the commencement of an action, when any of these counts is an appropriate general statement of the cause of action.” It was in fact allowed as a convenient mode of bringing a limited class of actions, deemed necessary under our practice, where the declaration or complaint must accompany the writ instead of being filed on its return, as is the practice in other jurisdictions where the new mode of pleading prevails. But the rule, while allowing this mode of instituting an action, does not contemplate permitting such incomplete form to call for any answer from the defendant, or even to support a judgment [344] by default. On the other hand it treats the form as rather in the nature of a summons, requiring a full complaint to be filed on return of the writ. This may be done, either by filing a bill of particulars and striking out all counts not applicable thereto, or by amending the complaint by filing a substituted complaint, or such other amendment as may be necessary to show the cause of action as fully as is required in other cases; and such amendment (being analogous to a complaint filed upon return of a summons, when actions are commenced by summons only) must be made after return of the writ and before the defendant is called upon to plead, or a default can be taken. When parties fail to observe the rule, it should be enforced by trial courts. Since Form 85 contains nine counts, each stating a separate cause of action, and is allowed only as a “ form of complaint ” in the manner “ provided,” it is apparent that such form can be used only as “ the complaint ” for the “ commencement of an action ”; and can never be used as a single count for the separate statement of a cause of action. This mode of instituting an action covered in substance the same rights of action for which the common law remedy was indebitatus assumpsit or the common counts, and so the rule of court, in providing the “ form of complaint ” for the commencement of such action, denominated it “ the common counts.” Its use has led to violations of the Practice Act and of the rule ; and such violations, in their indirect consequences certainly, are serious evils. They are not likely to come before us as errors assigned on appeal; but as one or two of the references we have heretofore made to the matter, may be liable to be misunderstood, and as the vicious practice incumbers our records and induces errors that do come before us, we deem it proper to call the attention of counsel and of trial courts to the necessity of following and enforcing the rule of court which allows and regulates the use of this “ form of complaint.” There is no error in the judgment of the Superior Court. In this opinion the other judges concurred.