Somerville v. Grim

Haymond, Judge, announced the opinion of the Court: This is an action of debt brought by the plaintiff against thejdefendant on the 25th day of August, 1877, in the circuit court of Mason county. The amount of the debt claimed in the suit is $1,200.00 and damages $100.00. The • declaration in the forepart demands from the defendant $1,200. The first count alleges that “on the 3d day of June in the year, 1876, at the county of Mason aforesaid the said defendant together with one Edmond Roush, since deceased, by their certain writing obligatory commonly called a single bill, sealed with their seals and now to the court here shown, the date whereof is the day and the year last aforesaid, joined and bound themselves, jointly and severally, to pay to the . said John Somer-ville, the plaintiff, or order the sum of three hundred dollars, one year after the date thereof, at six per cent per annum. And the said plaintiff in fact saith, that the said defendant, nor his deceased co-obligor, in his lifetime, has not nor have they, nor has either of them paid to the said plaintiff on or before the 3d day of June, in the year 1867, nor since that time, the said sum of three hundred dollars in said single bill specified according to the terms and effect of the said single bill, or any part thereof, the same being part and parcel of the sum above demanded”. The remaining counts and conclusion to the declaration are as follows: — 806 — “And also for this, on the day and year last aforesaid, _at the county of Mason aforesaid, the said defendant together with one Edmond Roush, since deceased, then and there became indebted to the said plaintiff in the further sum of three hundred (300) dollars, for money by the said John Somerville before that time lent and advanced to the said Simon Grim, together with one Edmond Roush, since deceased, at their special instance and request, and to be paid by the said Simon Grim and said Edmond Roush, since deceased, to the said plaintiff when they, the said defendant and said Edmond Roush, since deceased, should be thereunto afterwards requested, whereby and by reason of the said last mentioned sum of money being and remaining wholly unpaid, an action hath accrued to the said John Somerville to demand and have of and from the said Simon Grim the said sum of three hundred (300) dollars, part and parcel of the said sum of twelve hundred (1,200) dollars above demanded. “And also for this, to wit, on the day and year last aforesaid, at the county of Mason aforesaid, the said defendant, together with one Edmond Roush, since deceased, then and there became indebted to the said plaintiff in the further sum of three hundred (300) dollars for money by the said John Somerville before that time paid, laid out and expended to and for the use of the said Simon Grim, together with the said Edmond Roush, since deceased, at their like special instance and request, and tu be paid by the said defendant and said Edmond Roush, since deceased, to the said John Somerville, the plaintiff, when they, the said defendant and said Edmond Roush, since deceased, should be thereunto afterwards requested, whereby and by reason of the last mentioned sum of money, being and remaining wholly unpaid, an action hath accrued to the said John Somerville to demand and have of and from the said Simon Grim the said sum of three hundred (300) dollars, parcel of the said sum of twelve hundred (1,200) dollars above demanded. — 807 — “ And also for this, to wit, on the day and year last aforesaid, at the county of Mason aforesaid, the said defendant, together with one Edmond Roush, since deceased, then and there became indebted to the said plaintiff in the further sum of three hundred (300.) dollars for money by the said Simon Grim and said Edmond Roush, since deceased, before that time had and received to and for the use of the said John Somerville, and to be paid by the said Simon Grim and said Edmond Roush, since deceased, to the said John Somerville when they, the said defendant and the said Edmond Roush, since deceased, should be thereunto afterwards requested, whereby, and by reason of the said last mentioned sum of money being and remaining-wholly unpaid, an action hath accrued to the said plaintiff to demand and have of and from the said Simon Grim, the said "defendant, the said sum of three hundred (300.) dollars, the residue of the said sum of twelve hundred (1,200.) dollars above demanded. Nevertheless, neither the said Simon Grim nor his joint obligor during his lifetime, nor his personal representatives since his decease, has as yet paid the said plaintiff the said several sums of money above demanded, or any part thereof, but the same, or-any part thereof, to pay to the said plaintiff, he, the said Edmond Roush, in his lifetime, and his personal representative since his decease, and also the defendant, have hitherto wholly refused and neglected, and still do refuse and neglect, to the damage of the plaintiff one hundred (100.) dollars; and therefore he sues.” It appears, that the defendant demurred to the declaration and to each count thereof, and that the court overruled the demurrer. I will at this place consider, whether the court erred in its action in respect to the demurrer. The breach as laid in the first count of the declaration does not seem to be stated in accordance with the form in a case of an action of debt against the surviving obli-gor in Robinson’s Forms at page 413. In this form the — 808 — breach as laid is : “ Nevertheless the said C. D., although often requested so to do, hath not, nor hath any other person, as yet paid to the said plaintiff/’ &c. Before our statute if one obligor in a joint bond was dead and the other living, the action could only be against him who survived. It was gone forever as to the representatives of the deceased obligor. His estate was entirely exonerated from the payment oi the debt by his death ; and the burden was wholly upon the obligor that survived. If the last surviving obligor died the action remained against his representatives. Menge’s ex’r v. Field’s ex’r, 2 Wash. 136; Elliott’s ex’r v. Lyell, 3 Call. 268; Chandler’s ex’r v. Neale’s ex’rs, 2 H. & M. 124; Atwell’s adm’r v. Milton, 4 H. & M. 253; Roane, Judge, in Atwell’s adm’rs v. Towles, 1 Munf. 181; Braxton’s adm’r v. Hylyard, 2 Munf.-. If the cause of action were joint and not joint and several, the executor of the deceased was liable at law, before our statute. 1 Bobinson’s (old) Practice. But the single bill in the case at bar, according to the allegations of the declaration, is joint and several. It may be, that strictly speaking, in a case like this the breach should be laid in the declaration as in the form prescribed by Mr. Bobinson or its equivalent, but under the view I take of the general conclusion of the declaration, it is unnecessary to decide that point in this case. Syllabus 2. Where an action of debt is brought upon two promissory notes, or two bonds, it is unnecessary to add to each count the usual conclusion. 1 Saunders on Plead. and Ev. 497, side page 405; Gilb. Debt 414; Robinson’s Forms 409, 410, 412. It is not pretended in this case, that the general conclusion to the declaration is not a sufficient breach, if it had been added to the first count of the declaration in this case ; and being added to the declaration as a general conclusion it applies to each count as well as all collectively in the action of debt. Whatever defects, if any, there may be in the form of the breach as added to the said first count, are cured by the — 809 — said general conclusion. In declaring on the common counts in the action of debt “the usual conclusion in each count by reason whereof, &c., an action hath accrued, &c., is unnecessary, and the usual breach at the end will suffice.” 1 Saunders on Plead. and Ev. 497, side p. 405; Gilb. Debt 414. And so, as above stated, in an action of debt upon two or more promissory notes or bonds, according to Mr. Robinson’s forms which I think are correct. Syllabus i. syiiaius i. The debt demanded in the commencement is usually the aggregate of all the sums claimed by the declaration to be due ; but a mistake in the calculation is quite immaterial. 1 Saunders on Plead. and Ev. top p. 197 and side p. 405; 11 East. 6. The action of debt lies to recover'" money lent, paid, had and received, &c. 1 Chitty Plead. 6th Am. ed. top p. 123, side p. 124. In the case of Eib v. Prindall’s ex’r, 5 Leigh 109, Judge Carr in his opinion at page 110 says : “Debt lies in all cases of determinate contract, whether verbal or written, and'is distinguished from assumpsit in this, that the latter must be brought, where the object is to recover damages for the non-performance of a parol or simple contract; but when the sum is ascertained, debt may be brought. Of the simple contract, for which debt lies, there is no doubt that a contract for money due on an account stated is included.” It is said, however, that debt on simple contract will lie for an indeterminate sum, capable of being readily reduced to a certainty, though it will not lie where the demand is rather for unliquidated damages than for money. 1 Chitty 101; Bac. Debt, E,” ; 2 vol. of Tucker’s Commentaries, 3d ed. 94. Debt on a specialty and on a mutuatus or other simple parol contract may be joined in the same action. Eib v. Prindall’s, ex’r., 5 Leigh 109. Union Cotton Manufactory v Lobdell et al, 13 Johns. 462. The second, third and fourth counts in the declaration in the case at bar are substantially, if not literally, the — 810 — same as given by Mr. Chitty at page 386 and side page ggy 0£ ^ gf^ e(p 0fhjs WOrk on pleadings, in debt money lent, money paid and money had and received, and they are clearly good and sufficient as cóunts in debt, and there is no misjoinder of counts or actions in joining the three last named counts with the third. It was not necessary to allege a request to pay in either the second, third or fourth counts of the declaration. See forms in 2d Chitty on Plead, for money lent, money paid, and money received. Supra. The breach at the end of the declaration is I think sufficient. An obligation to pay money oh demand is evidence of a present debt payable instanter, and the writ is a demand. Payne v Butler, 6 Randolph, 101 and 105. But the allegations of refusal to pay contained in the breach at the end of the declaration necessarily implies a request. It seems to me upon the whole, that the court did not err in overruling the said demurrer. After the demurrer was overruled, the defendant filed two pleas, to wit: nón est factum as to the supposed writing obligatory in the declaration mentioned, and nil debet as to each of the three last connts in the declaration. Upon these pleas issue was joined and a trial of the issues were had before the court by the jury on the 20th of April, 1878, and the jury found for the plaintiff upon the issues joined the sum of $334.00, and upon this verdict the court on'the day and year last aforesaid rendered judgment for the plaintiff, against the defendant for the amount thereof with interest thereon from the day and year last aforesaid and for the plaintiffs costs of suit. No error is assigned in any of the proceedings of the court subsequent to the overruling of the demurrer to the declaration ; and I have discovered none. For the foregoing reasons there is no error in the said judgment of the circuit court of the county of. Mason rendered in this cause on the 20th day of April, 1878 ; and the same must therefore be affirmed, and the plaintiff in error must pay to the defendant in error damages — 811 — according to law, and his costs in this suit expended about his defence of the writ of error and supersedeas awarded in this cause. The Other Judges Concurred. Judgment Appirmed.