Eastman v. Anthony

Mr. Justice Scott delivered the opinion of the Court: The declaration in this case is upon two acceptances, is against defendants as partners, and contains also the common counts for goods sold. Defendants pleaded severally. One of them pleaded the general issue ivith the conclusion to the country, and filed with his plea an affidavit of merits as to $50 of plaintiffs’ claim. The other defendant pleaded that he did not “undertake and promise” jointly with his co-defendant, as alleged in the declaration. To these pleas plaintiffs demurred, and for cause of demurrer allege defendants have used the words “ undertake and promise ” instead of “ undertake or promise.” The court sustained the demurrer, and defendants standing by their pleas, final judgment was rendered against them and plaintiffs’ damages assessed by the court. Without discussing the question made, whether a party may file a joint demurrer to pleas of several defendants who have severed in pleading, it is sufficient for the decision of the present case that the demurrer in any event was improperly sustained. As we have said in Shufeldt v. Fidelity Savings Bank, ante, p. 597, the words “undertake” and “promise” are equivalent words, and the use of either of them constitutes as effectual a traverse of a declaration in the usual form in assumpsit as would the use of both of them. When both words are used as in this case, it is a matter of no consequence whether they are connected by “and” or “or.” The meaning in either case is precisely the same. On the objection being made by special demurrer the court might have directed the correction to be made at once without prejudice so as to conform to approved precedents, but it was not material it should do so. The objection is too frivolous to be seriously considered. The judgment will be reversed and the cause remanded. Judgment reversed.