Bean v. Ayers

| Me. | Jan 29, 1879

Libbey, J.

This case has been before this court- before on special demurrer to the declaration, which set out the written agreement of the defendants with the plaintiff in words and figures according to its tenor; and one of the causes of demurrer assigned was that the declaration contained no allegation of a promise by the defendants to do and perform the things stipulated in the agreement, according to its legal effect. The demurrer was sustained on the ground that the promise itself should be alleged, and not the evidence of it merely. The other causes assigned were overruled. Bean v. Ayers, 67 Maine, 482.

The plaintiff had leave to amend, and did amend, and thereupon the defendants filed a special demurrer to the declaration as amended, assigning two causes of demurrer.

The first cause assigned is as follows : “ The promise of said defendants, set forth in said amended declaration as being merely “ to return said logs to said plaintiff on demand, or on failure so to do, to indemnify ” him as set forth, based upon, by direct reference to said defendants’ alleged agreement therein previously recited and set forth in words, figures and signatures, as made by them, is inconsistent and repugnant with the terms of said agreement as therein previously recited, in this that the promise is not as alleged, but is, with other alternative terms, “ to return the same (said logs) to him (plaintiff), or his order or successor in office, or to any person authorized by law to receive the same,” on demand, and, in case of failure to deliver said property, to indemnify and save him harmless.

What would be a variance between the allegations in the declaration and the evidence produced to sustain them, is a repugnancy when such evidence is set out in the declaration, and there is a like variance between it and the allegations which follow it.

Is there a fatal variance between the promise evidenced by the written agreement and that alleged in the amended declaration ?

In Fay v. Goulding, 10 Pick. 122, the court held that in an action by the payee on a promissory note, alleged in the declaration to be payable to the plaintiff, and the note produced was payable to the plaintiff, or his order, there was no material variance.

In Alvord v. Smith, 5 Pick. 232, the action was upon a contract for the sale of a sixteenth part of a distillery, and the declaration alleged that the defendant promised to satisfy and discharge any arrearages which were then or might thereafter become due upon it. The evidence was of a promise to satisfy and discharge the arrearages, and to pay one hundred dollars. The court held that it was not a fatal variance. Parker, C. J., says : “ A proof of a promise beyond what is averred, but embracing that also, cannot prejudice the defendaut. It is not setting forth a different promise, but failing to set forth the whole, to the prejudice of the plaintiff only. It is in this respect like an action of covenant, in which, though there are many covenants, the plaintiff may sue for the breach of one. Won constat that the other branch of the promise has not been performed.”

In Bank v. McKenney, 67 Maine, 272, this court held that, when, in an action against one of several signers of a promissory note or contract, the declaration describes it as made by the defendant alone, there is no variance. See cases there cited.

So in an action by A, as treasurer of a corporation, on a note made payable to him, or his successor in office, the promise may well be alleged as made to the plaintiff. It is necessary to allege the promise to pay to the successor in office of the promisee, only when the action is brought in the name of such successor.

Applying these rules to the point under consideration, we think there is no repugnancy in the declaration. The action is brought by the promisee. The contract is set out according to its tenor, followed by the allegation that the defendants thereby became liable to deliver said logs to the plaintiff, on demand, and then and there promised so to do. This allegation is not repugnant to the promise contained in the contract. By the contract the plaintiff had the right to require the defendants to deliver the logs to him on demand. The allegation contradicts nothing contained in the contract. It is all that is necessary to show the plaintiff’s right to recover. True, it is not alleged that the defendants thereby promised to deliver the logs to the plaintiff, or his order, or his successor in office, or to any person authorized by law to receive tbe same; but the answer is that no claim is asserted by any person other than the plaintiff. To show the plaintiff’s right to recover, it is no more necessary to notice this part of the promise than it is to allege the promise as made to the plaintiff or his order, in an action by the payee on a promissory note.

The second cause of demurrer assigned, is the want of proper averment of demand, and refusal by the defendants to deliver the logs. The declaration in this respect is precisely the same as it was at the time of the former special demurrer. The cause of demurrer now assigned was not then assigned, nor was it presented to the consideration of the court. Bean v. Ayers, supra. By not then assigning it as cause of special demurrer, or relying upon it as ground of general demurrer, the defendants waived any right of objection for that cause, to the same extent as if they had pleaded over instead of demurring. Grould’s Plead, c. 9. part 1. §§ 21 & 22. Otherwise if there are several defects in form, in the declaration, the defendant might have as many special demurrers as there are defects, pointing out only one defect at a time, thus unnecessarily protracting litigation, and unjustly enhancing the costs.

We think the only causes of demurrer which can be assigned, or relied upon, in the second demurrer, are such as appear by the amendment.

The docket entry shows that the plaintiff’s amendment was filed at the April term, 1878, and that the demurrer was filed at the same term; and the same facts are asserted in the exceptions. The demurrer being to the amendment, and having been filed at the term when the amendment was made, must be regarded as made at the first term. The defendants have the right to plead anew on payment of costs from the time of filing the demurrer.

Exceptions overruled.

Appleton, 0. J., Walton, Barrows, Daneobth and Peters, JJ., concurred.