Pipp v. Reynolds

Graves, J. This Case having been brought to trial upon the issue of fact and the evidence on both sides having been submitted, the Court instructed the jury that the special counts in the declaration did not allege a cause of action. The case was therefore decided by the Court upon the view taken of the special counts, it appearing to have been admitted that the plaintiff’s cause of action, if any, was based upon them alone. They are framed in special assumpsit and purport to set forth the facts supposed by the pleader to constitute the express contract on which the plaintiffs sued. According to the facts so stated, it appears that upon a consideration moving wholly from one Ecklin, the defendants promised to perform a job of painting for the plaintiffs, which Ecklin had theretofore agreed with the plaintiffs to do for them; but it is not stated to whom this promise of the defendants was made. It is, however, alleged that by means of the premises, promises and undertakings therein before set forth, the defendants became liable to pay to the plaintiffs, &c. This passage which alleges the liability of the defendants as a consequence of the circumstances set up, could have no effect whatever as a statement of the ground of action. I.t is the bare statement of the plaintiffs’ conclusion of law, and not an allegation of fact, and unless the facts set forth should appear to warrant the conclusion, the de [93] elaration could receive no aid from it. — G01Ü&& Plead, c. 9, § 29; Bailey v. Bussing, 29 Conn., 1 and cases cited; Mc-Cune v. Norwich City Gas Co. 30 Conn., 521; Millard v. Baldwin, 3 Gray, 484; Granger v. Collins, 6 Mees. & Wels. 458. The declaration was clearly demurrable for not stating to whom the promise was made, but this defect, if the only one, would have been remediable on the trial, or after verdict for the plaintiff. The omission could have been supplied by intendment, and in my opinion that intendment might have been either that the promise was made to the plaintiffs or to Ecklin, as the one or the other harmonized with the real facts, and would support a verdict for the plaintiffs.— Chitty’s Plead. ( Springñeld Bd.) 8S1; laives on Plead, in Assumpsit, pp. 92-98-95, margin, (Story’s Bd.) Whether the facts were consistent with an intendment that the promise was made to the plaintiffs cannot be determined from anything contained within the record. But when we observe that the briefs and arguments from the bar on both sides, proceeded upon the theory that no promise was in fact made to the plaintiffs, and that Ecklin was the actual promisee, it seems inevitable to conclude that the circumstances required that construction, and excluded any other intendment in support of the declaration. It, therefore, appears reasonable, in order to decide the case upon a theory consistent with the facts, as both parties represent them, to regard the special counts as we should if they had actually set forth the contract, sued upon in such form as to constitute Ecklin, from whom the consideration proceeded, the real and sole promisee. The question is therefore whether these counts thus considered, disclose any cause of action in the plaintiffs, and I am of opinion that they do not. They are in special assumpsit upon the original contract itself, and not upon any right or duty of which that contract alone, or with other facts, would be matter of inducement. [94] This contract as represented in pleading, appears to have been made exclusively between defendants and Ecklin while the plaintiffs who sue upon it are not shown to have been connected with the consideration or promise, or to have been privy to the transaction. It is true as the declaration shows, that so much of the agreement as related to the undertaking of defendants consisted of an engagement on thfir part, to perform a job which Ecklin had theretofore agreed with the plaintiffs to do for them; but this circumstance could not invest the plaintiffs with the right to recover of defendants in special assumpsit, on the express agreement to which they were strangers, any damages caused by the partial or total failure to perform that agreement. To such damages, the declaration shows no title in the plaintiffs. Though as between Ecklin and the plaintiffs, the former is stated to have undertaken to perform the work, and as between defendants and Ecklin, the defendants are alleged to have promised to carry out that agreement, and thus making the performance of Ecklin’s part of the first agreement one of the objects of the second agreement, yet no contract relation between the parties to this suit in respect to the last agreement, is shown, which could entitle the plaintiffs to recover damages for its violation by defendants. The import of the facts as pleaded is that Ecklin, having agreed with the plaintiffs to do for them the job of painting, subsequently employed the defendants to execute the work, whereby the latter became Ecklin’s sub-contractors and not promisors of the plaintiffs. I think the judgment of the Circuit Court should be affirmed with costs. ■ The other Justices concurred.