Blick v. Briggs

| Ala. | Jun 15, 1844

COLLIER, C. J.

We are at a loss to perceive upon What ground the county court sustained the demurrer to the declaration. The first count is clearly good; and the second, if maintainable, discloses a cause for Which the plaintiff may as well have sued in case as assumpsit. There was then no misjoinder, and the demurrer being general, should have been overruled in teto.

Upon the hypothesis that it may have been supposed that the notion was misconceived, we will briefly consider for what causes case is the proper remedy, at least so far as it is material to the present inquiry. It is said that this action is not confined to injuries merely ex delicto — it is a concurrent remedy with assumpsit for many breaches of contract, not merely for the payment of money, whether the breach were nonfeasance, misfeasance or malfeasance. Thus, case lies upon an express agreement in obstructing the plaintiff in the enjoyment of an easement, of which the defendant stipulated that he should have the benefit* and it seems to be maintainable for not accounting for the produce of bills delivered to the defendant to get discounted.

It has also been held, that if a party has transferred a bill without indorsing it, when it was intended he should do so, a bill may be filed in equity to compel him; and a special action on the case may be maintained against him for a refusal. [Chitty on Bills, 228, 263, 9 Am. ed.]

In Burnett v. Lynch, [5 B. & C. Rep. 589,] it was said that case affords a most extensive remedy for all breaches of duty, quasi ex contractu; and where, from a given state of facts, the law raises an obligation to do a particular act, and there is a breach of that obligation, and a consequential damage, an.action! on the case, founded in tort, is the proper remedy. Such an action has been sustained by the lessee against his assignee for neg--lecting to perform his covenants, in consequence of which the' lessor had recovered damages of the lessee. In the case last cited, it was said by Abbott, C. J., that case often lies as a concurrent remedy with assumpsit, and that it by no means follows,, that because a promise may be implied by law, the action on the' case, which is in terms founded on the breach of that duty frorg,-which the law implies a promise, may not also be maintainable.

It is said there is no inconvenience in suffering the plaintiff to-allege his gravamen as consisting in a breach of duty arising out-of an employment for hire, and to consider that breach as tortious'-negligence, instead of regarding the same circumstances as forming a bi-each of promise implied from the consideration of hire.-[Govett v. Radnidge, 3 East’s Rep. 70.] Not only where there is implied, but express contracts, if they create a duty, wll case lie; for “although there be an express contract, a party is nof bound to resort to that contract, but he may declare on the tort, and say that the party has neglected to perform his duty.” — By Bayley, J., Burnett v. Lynch, ut supra. [Mast v. Goodson, 3 Wils. Rep. 348; Brethetton v. Wood, 3 B. & B. Rep. 64.]

By allowing a party to declare for a neglect of duty, although there is a breach of promise, a multiplicity of actions is sometimes avoided; “and the plaintiff, according as the convenience of his case requires, frames his principal count in such a manner',-as either to join a count in trover therewith, if he have another cause of action, other than the action of assumpsit, or to join with the assumpsit the common counts, if he have another cause of action to which they are applicable.” [Govett v. Radnidge, ut supra; Weall v. King and another, 12 East’s Rep. 464.] Other advantages may result from the adoption of case instead.of as-sumpsit. In the former, the defendant cannot always ■ plead'- in abatement the non-joinder of other parties as defendants; and the plaintiff may frequently recover if he prove one of several, defendants to be liable; which is not allowable in assumpsit. [Max v. Roberts, et al. 12 East’s Rep. 94; 1 Chit. Plead. 134-5, 8.]

From this view of the law, it will be apparent that both the counts disclose a cause of action for which a declaration may be framed in case. In respect to the first count, the- duty- incumbent upon the defendant, as well as its breach, are clearly stated. We were inclined to question the sufficiency of the second count* but further examination has satisfied us, that it is at least substantially good when considered with reference to the act of 1824, which dispenses with special demurrers and discourages objections that are merely formal.

It cannot be assumed that the agreement disclosed in the second count, is obnoxious to the statute of frauds. For any thing shown to the contrary, it may have been in writing, and if so, no such objection can be urged. In declaring on a contract to pay -the debt of a third person, it is not necessary to allege that the promise was written; but it would bo necsssary to prove it, unless its validity was admitted by the pleadings..

Again; we could imagine a state of facts which it would be permissible to show, under the second count, that would establish a right of recovery, although there was no written evidence of the defendant’s undertaking. But it is unnecessary, and, perhaps, improper in the condition in which this case comes before us, to be more particular, upon this point. It is sufficiently apparent from what has been said, that the demurrer was improperly sustained; the judgment is, therefore, reversed, and the cause 'remanded.