16 Conn. 579 | Conn. | 1844
The defendants object to the breach, on the ground that it does not show at what time the award directed the said acts to be done by the said John; nor what debts were due from either of said firms; nor that there were any such debts; nor that the plaintiff has been damnified, by rea
With that strong disposition which courts ever feel to sustain, if possible, consistently with established principles of pleading, a declaration, at this late stage of the cause, we find ourselves unable to overcome this objection. There cannot be a breach of this bond, without a non-performance of the award. Therefore, in order to ascertain whether there has been a performance, it was necessary to set out the award according to its legal effect. As the terms of the award are not before us, we have not the power of determining what they are, or what would be its construction or legal effect, any further than it is described in the declaration; and in respect to the time of the performance of the acts to be done by the said John, the declaration is wholly silent as to what the award requires. We cannot therefore say, whether, by the terms or true construction of the award, the acts required by it were to be done on request, or in a reasonable time, or at some time expressly designated; each of which would import a different obligation. Whatever may be its terms or construction, it would undoubtedly support, as matter of evidence, an allegation that they were awarded to be performed at such time as would correspond to its legal effect; and it was incumbent on the pleader so to frame his allegations, that, in this particular, there should be such correspondence. But unless some time is alleged in the declaration when such acts were directed to be done by the award, no issue can be taken on that point; nor can the court determine whether the time has arrived for their performance; and consequently, whether there has been a breach of the condition of the bond. Com. Dig. tit. Pleader. C. 17, 1 Chitt. Pl. 1. As it is not stated, at what time the said John was bound to perform them, for aught that appears, that time has not yet arrived. Hence it does not appear by the declaration, as it unquestionably should, (since it is the duty of the plaintiff to make out a title affirmatively,) that any cause of action has accrued to the plaintiff. 6 East’s R. 564. In an action of debt on a bond with condition, not only is the same degree of certainty necessary, whether the condition and breaches are set out in the declaration, or the breaches are set out in the replication on a plea of performance after oyer; but accord
Nor is that part of the breach which relates to the outstanding debts of the firms of D. & D., and D. & R., well laid, inasmuch as there is an omission to allege that there are any such debts, or that the plaintiff has been damnified on account of them. Without such allegation, there is a want of that certainty which the rules of pleading require; and at most the existence of such debts is left in a state of ambiguity, in which case the construction should be most strong against the pleader. If such debts existed, the court should have been informed of it, so that it could see certainly, that the defendant had omitted the duty imposed on him by the award. Such allegation was also necessary, in order that the defendant might be apprized of the precise character of the claim made against him, and be able to meet it, by such answer or evidence as might be necessary. Com. Dig. tit. Pleader. C. 17.
Tested also by the rules which prevail in actions of covenant and assumpsit, the breach, in this respect, is insufficiently stated. On an examination of the precedents on express contracts, which impose on the defendant an obligation similar to that imposed by the award in this case, none has been found where the allegation required by the objection has been omitted. It would not indeed be easy from these precedents to determine with what precise degree of particularity it was
The plaintiff however claims, that these defects in the declaration are cured by the verdict, on the ground that this is the case, not of the statement of a defective title, where some fact essential to constitute a cause of action is wholly
For these reasons, the superior court should be advised to arrest the judgment.
Judgment arrested.