40 A.2d 531 | Vt. | 1945
This is an action in contract. The writ and the original declaration are dated August 13, 1942. Upon motion and leave obtained an amended declaration was filed on February 23, 1944, to which the defendant demurred specially. The demurrer was overruled pro forma, and the cause has been passed to this Court, on defendant's exceptions, before final judgment in accordance with the provisions of P.L. 2072.
The declaration is long, but it is not necessary to recite it in detail for its material allegations may be briefly given. Originally it alleged that on August 6, 1941, the defendant sold and agreed to deliver to the plaintiff a specified list of windows, window frames, sashes and trim, screens, doors, door frames, jambs and trim; that the agreement was modified from time to time, until the final date for delivery, December 1, 1941; that payment of the purchase price, $1359.94, was made by the plaintiff in two installments in accordance with the contract; that the defendant neglected to deliver certain enumerated items on or before December 1, 1941; and *152 that damage was suffered by its default. The amendment includes the above, and alleges that the defendant, before entering into the contract, was informed that the merchandise was wanted by the plaintiff to renovate and repair its buildings, so that it could be used as a place of business in the spring of 1942, that the plaintiff had engaged carpenters, plasterers, plumbers and electricians to work during the winter of 1941-1942, and had purchased and arranged to purchase lumber for interior decorating, plaster and plumbing and electric fixtures, and that the delivery of the merchandise to be furnished by the defendant was required to be made by December 1, 1941, in order to use the material and labor for which the plaintiff had arranged; that of the merchandise not delivered on that date, the plaintiff received, between September 26, 1941, and October 31, 1942, certain items consisting of weatherstrips and springs, storm sash, two sets of trim and one window sash, but by reason of the delay, it was obliged to and did expend a large sum of money in attempting to assemble and install the windows in connection with which these articles were required; that several described window frames were too large for the windows furnished with them, and that the plaintiff will be obliged to purchase new windows and employ carpenters to install them; that because of the defendant's default in failing to furnish windows in accordance with the contract, the interior work could not be completed, that the plaster and lime already purchased became hard and useless, necessitating the purchase of new plaster at an increased price, and that the plaintiff was forced to and did pay the carpenters a higher wage than it otherwise would have done.
The defendant's thesis regarding the first two grounds of the demurrer is that the amended declaration alleges three separate causes of action, for non delivery of part of the merchandise, for delay in delivering of part of it, and for delivery of certain window frames which were not of the dimensions specified in the contract; which is, in effect, that the declaration is bad for duplicity. Gould, Pleading, (4 Ed.) 205.
Duplicity is a defect of form and not of substance. Johnson v.Hardware Mutual Casualty Co.,
Under the circumstances, however, we treat the demurrer, in so far as it raises the question of duplicity, as if it were a motion under the statute, and had been regarded as such by the trial court. As it called for the exercise of discretion it was error to rule upon it pro forma. Ainger v. White's Admx,
A declaration is not objectionable for duplicity when it alleges in one count the breach of more than one obligation contained in a single contract. Smiley v. Deweese, 1 Ind 211, 27 N.E. 505; Fisk v. Tank, 12 Wis 276, 78 Am Dec 737, 740-1; WesternUnion Tel. Co. v. Barbour,
In the present case the entire claim arises from the same contract and hence there is a single cause of action in which all resulting damages are to be assessed in one proceeding. LoudenMachinery Co. v. Day,
Another ground of demurrer is that the declaration contains no averment that the window frames, which are claimed to be too large for the windows, were not of the size ordered by the plaintiff. But the required dimensions of the frames and of the windows to be installed in connection with them are set forth in the recital of the terms of the contract, and so there is a sufficient allegation of the discrepancy in size.
The remaining ground of demurrer, briefly stated, is that by the amended declaration the plaintiff seeks to recover damages which have accrued since the date of the writ.
In an action for the breach of a stipulation contained in a contract of sale the buyer may recover such damages as directly and naturally result in the ordinary course of events from the seller's neglect to perform his obligation. Copper Co. v. CopperMining Co.,
The pro forma judgment overruling the demurrer is affirmed andthe cause remanded.