Bailey v. Bussing

29 Conn. 1 | Conn. | 1860

Storrs, C. J.

The action in the case brought before us by this motion in error being founded on a simple contract, it was plainly necessary that the declaration should disclose facts from which it would appear that there was a legal consideration for the promise of the defendant which is relied on. In our opinion this declaration, for the want of any averment showing such facts, is insufficient. After stating a recovery of a judgment by Haight and his wife against the plaintiffs’ testator and the defendant and H. Whitlock, and its amount, and a payment by said testator of a part thereof upon the execution issued on the judgment, it proceeds to allege that it was the proper duty of the defendant, and that he was in law liable, to pay to the said testator one-third of the amount so paid by the latter, and that, in consideration of said liability, the defendant promised to pay to him the one-third of that amount on request. It is a case, therefore, where the legal liability only of the defendant to pay is stated as the consideration of the promise on which the action is brought. There is no doubt that the existence of such a liability would constitute a good consideration for the promise declared on ; and it would be properly laid, as it is in this declaration, as a promise to pay on request, asfthat is the only promise which the law would imply from such a liability, or which if express it would uphold in consideration of it; it being well settled that an executed consideration will not support any other promise than that which the law implies, namely, to pay upon request, Hopkins v. Logan, 5 Mees. & W., 240. Granger v. Collins, 6 id., 458. Jackson v. Cobbin, 8 id., 790. Lattimore v. Garrard, 1 Excheq., 809. Kaye v. Dutton, 7 M. & G., 807. Brown v. Crump, 1 Marsh., 567. Smith on Cont., (Am. Ed.,) 112, note a.

But although such a liability is a good consideration for such a promise founded upon it, whether implied or express, it is not sufficient that a declaration on that promise merely states that there existed such a liability. It must state the facts on which it arose, and in such a manner that the court can see that there was in law such a liability. The statement only of its existence, without the facts on which it arose, is obviously only the statement of a legal inference, which is mere matter of law, and which is not only not necessary, but ought not to be alleged in pleading, excepting only for the purpose for which it is sometimes inserted, of conveniently or intelligibly introducing statements of fact. Steph. Pl., 354. Hence, as has been often held, allegations of duty or liability are immaterial and not traversable; (Cane v. Chapman, 5 A. & E., 647; Steph. Pl., 191;) and it is necessary only to state the facts on which a legal liability arises as the consideration of the promise laid in a declaration, without any formal averment of the existence of such liability. It results therefore, that if facts are not stated which are sufficient in law to show the duty or liability which is alleged as the consideration of the defendant’s promise, there is an omission to state a consideration for that promise, and consequently the plaintiff fails to show, what is requisite in all declarations, a prima facie title to maintain his action. These principles are laid down in all the elementary treatises on pleading, and that particularly which relates to the insufficiency and immateriality of an allegation of legal duty or liability as laying the foundation of a recovery without a statement of the facts on which such duty or liability arises, is stated and illustrated with peculiar precision and clearness in Seymour v. Maddox, 5 Eng. L. & Eq., 265, the reasoning of the judges in which, although it was an action on the case, is equally applicable to the declaration now before us. That is a most explicit decision to the point that the allegation of duty or liability is of no avail, and will not help a declaration, unless the facts necessary to raise it are stated. See Granger v. Collins, 6 Mees. & W., 458. Lattimore v. Garrard, 1 Excheq., 809. Hopkins v. Logan, 5 Mees. & W., 240. The question then arises, whether any facts are stated in this declaration which show the existence of the liability to the plaintiffs’ testator on the part of the defendant which is alleged hi it, — namely, to contribute towards the payment of the judgment recovered against them and Whitlock. This question can not be answered in the affirmative, unless the mere fact that a judgment was recovered against them, of itself, and without any allegation stating what the ground or cause of action was on which it was rendered, shows or imports that it was for such a cause of action that the law imposed upon the defendant the duty, as between him and the others against whom it was rendered, to contribute to its payment ; for the declaration is wholly silent as to the ground of that action. But, as there are many causes of action against several persons jointly of such a nature that no contribution can be claimed between them, nor consequently on judgments rendered against them, such, for instance, as slander, assault and battery, and generally torts, it is wholly uncertain from the declaration in this case, whether the cause of action for which the judgment stated in it was recovered, was one for which those against whom it was rendered were bound to contribute or not; and it being as compatible with everything it alleges that there was not as that there was such an obligation, it can not be maintained that it avers facts which show its existence. There is therefore clearly a want of the statement of the facts necessary to show any consideration for the promise declared on, and consequently a valid promise. On examining the precedents of declarations in suits for contribution, we find that the form of them, especially in modern times, is usually that of the count in general indebitatus assumpsit for money paid, laid out and expended, which is, for several reasons, the most advisable form of declaring in such cases; but where a special count is adopted, it in no case states merely the existence of a legal liability on the part of the defendant to contribute to the amount paid by the plaintiff, but invariably alleges the facts on which such liability arose.

Notwithstanding the reluctance which courts feel in arresting judgment in this late stage of a case, we are constrained to say that the defect in this declaration is not aided by the verdict. It is the case of a defective title, and not of a title defectively set forth. There is not merely an informal, loose, or even vague statement of the facts essential to a right of recovery, from which a fair and reasonable intendment might arise that they were proved on the trial, but an entire absence of those facts or any allusion whatever to them. If the allegation of the liability of the defendant to contribute to the judgment recovered against him and the plaintiffs’ testator and Whitlock, could properly be considered as one of fact and not of law, it might obviate, after verdict, the want of a more full or formal statement of the facts on which such liability arose ; but this is impossible without disregarding the well settled rules of pleading applicable to the statement in declarations of the facts which are the foundation of the plaintiff’s right of action. Seymour v. Maddox, supra. There remains then only the bare statement of the recovery of the judgment against the parties and another person, from which it can be inferred that it was proved on the trial that the judgment was rendered for a cause of action for which the defendant was by law bound to contribute. We know of no principle, and can find no case, which authorizes us to draw such an inference or presumption from such a statement. The rule on this subject is thus clearly and precisely explained in Jackson v. Pesked, 1 M. & S., 234: — “ Where a matter is so essentially necessary to be proved, that, had it not been given in evidence, the jury would not have given such a verdict, there the want of stating that matter in express terms, in a declaration, provided it contains terms sufficiently general to comprehend it in fair and reasonable intendment, will be cured by a verdict.” Mr. Stephen, on this statement of the rule, after remarking that it accords with the rule as laid down by Mr. Serg. Williams, in 1 Saund., 228 a, note 1, says: “ It is however only where such1 fair and reasonable intendment ’ can be applied, that a verdict will cure the objection ; and therefore if a necessary allegation be altogether omitted in the pleading, a verdict will not aid.” (Steph. on Plead., 149.) And he cites Jackson v. Pesked, just mentioned, where the plaintiff brought an action of trespass on the case, as being entitled to the reversion of a certain yard and wall, to which the declaration stated an injury to have been committed, but omitted to allege that the reversion was, in fact, prejudiced, or to show any grievance which, in its nature, would necessarily prejudice the reversion; and the court arrested the judgment after a verdict for the plaintiff, holding the fault to be one which the verdict did not cure. See also Rushton v. Aspinall, Doug., 679; Spieres v. Parker, 1 T. R., 141; Collins v. Gibbs, 2 Burr., 899; Small v. Cole, id., 1159; and Seymowr v. Maddox, before cited; in the last of which the precise fault complained of in this declaration was held not to be cured by verdict. In the case now before us, there is an entire omission in the declaration of the essential facts which the plaintiff claims ought to be presumed to have been proved on the trial. There being no allegation to let in proof of those facts, there can be no such presumption.

For these reasons the judgment complained of should be arrested.

In this opinion Hinman and Sanford, Js., concurred.

Ellsworth, J., thought, that as the promise of the defendant must be taken after verdict to be an express one, a sufficient consideration was to be found in the facts alleged, namely, the payment of a judgment against the defendant himself, one of the debtors in the judgment, to the amount of $1,350, and the defendant’s subsequently ratifying that payment and agreeing to pay his proportion, one-third, to Turner, the plaintiffs’ testator. He was further inclined to hold, that the defects of the declaration were to be regarded as defects in the statement of the plaintiffs’ title, ratber than in the title itself, and that they were therefore cured by the verdict.

Judgment reversed.