Davis v. H. S. & M. W. Snyder, Inc.
252 Mass. 29
Mass.
1925
Check Treatment
Crosby, J.

This is an action by the plaintiff as administrator of the estate of Marcus A. Tockel, deceased, upon an alleged liability of the defendant to the plaintiff in his capacity as such administrator. The writ when originally brought described the action as one in contract; it was subsequently amended by the insertion therein after the words “in an action of contract” the words “or tort, for one and the same cause of action, as the plaintiff is uncertain as to which class the said cause of action belongs.” A demurrer to the declaration upon various grounds was filed, and thereafter an amendment to the demurrer was allowed, and an order sustaining it as amended was entered. The case is before this court on. an appeal from that order.

The declaration, in one count, undertakes to set forth a cause of action which sounds in contract and also a cause of action sounding in tort. The rule of pleading at common law was that the declaration must allege “all the circumstances necessary for the support of the action, and contain a full, regular and methodical statement of the injury *35which the plaintiff has sustained, with such precision, certainty and clearness that the defendant, knowing what he is called upon to answer, may be able to plead a direct and unequivocal plea; and that the jury may be able to give a complete verdict upon the issue, and the court, consistently with the rules of law, may give a certain and distinct judgment upon the premises.” Read v. Smith, 1 Allen, 519, 520. The rule so stated is the same under the practice act, now G. L. c. 231, § 7, cl. 2. Prentiss v. Barnes, 6 Allen, 410, 411. The fourth clause of the same section provides in part that the declaration “need not contain more than one count for each cause of action .... Two causes of action arising on different contracts shall not be embraced in one count except in a count on an account annexed.” A cause of action for trespass cannot be joined in one count with one for malicious prosecution. Allen v. Edwards, 136 Mass. 138, 139. In Cunningham v. Hall, 7 Gray, 559, the writ, describing the action as “an action of tort and action of contract, both being for one and the same cause of action ” and containing a single count in tort, was amended by adding a count in contract with an averment that both counts were for one and the same cause of,action. It was held that after such amendment the action could be maintained under the practice act. St. 1852, c. 312, § 2, now G. L. c. 231, § 7. The sixth clause of the same section provides that “Actions of contract and actions of tort shall not be joined; but if it is doubtful to which division a cause of action belongs, a count in contract may be joined with a count in tort, with an averment that both are for one and the same cause of action.” Under this provision it is plain that when, as in the present case, a cause of action in contract and a cause of action in tort are alleged, such allegations must be made in separate counts with the averment that they are for one and the same cause of action, and cannot be included in á single count. Cunningham v. Hall, supra. Although the statute authorizes the joinder of a count in contract with a count in tort for the same cause of action, it does not permit joinder of a cause of action in contract with a cause of action in tort in a single count. Sullivan v. Fitzgerald, 12 *36Allen, 482. P. Garvan, Inc. v. New York Central & Hudson River Railroad, 210 Mass. 275, 281. The declaration being defective, it manifestly is demurrable.

Apart from improper joinder of an action of contract with one in tort in one count, the declaration is demurrable for the reason that it fails to set forth a cause of action either in contract or in tort. If the allegations were sufficient to state a valid cause of action in contract provided there had been an averment of consideration therefor, the absence of such averment is fatal. It is elementary that, where an action is founded upon contract, consideration must be alleged unless the contract itself implies a consideration, as in actions upon promissory notes or bills of exchange. Stone v. White, 8 Gray, 589. Murdock v. Caldwell, 8 Allen, 309, 310. Cochran v. Duty, 8 Allen, 324. Woodruff v. Wentworth, 133 Mass. 309, 313. The case of Wood v. Danas, 230 Mass. 587, cited by the plaintiff, is distinguishable in its facts from those in the case at bar.

The allegation relating to the promise of the defendant, contained in its letter to the National City Bank dated April 13, 1918, to send the bank a check in payment for the rubles unless they were sold, in which event the defendant would pay the loss incurred, not having been made to the plaintiff’s intestate or to any one representing him, sets forth no enforceable contract in favor of the plaintiff.

So far as the declaration undertakes to allege a tort it avers that “the defendant, without the knowledge, authority, or consent of said Tockel and contrary to his rights, directed said National City Bank to send the said Tockel’s said money to Russia. Thereupon, said National City Bank wholly by reason of said direction sent said money to Russia.” The rest of the declaration may be taken as a statement of the manner in which, due to the defendant’s act, a loss occurred. It is then alleged that the “said Tockel believed the assurances aforesaid of the defendants and relied thereon, and wholly by reason thereof was deprived of and lost said entire sum of $7,671.18 and the interest thereon, and the defendants wholly failed to make the payment set forth in said letter of April 13, 1918, or otherwise to meet said *37TockeFs loss as aforesaid.” It appears from these allegations that the plaintiff does not rely upon the alleged wrongful acts of the defendant in directing the bank to send the money to Russia without authority from Tockel, but upon the assurances contained in the defendant’s letter to the bank in which it promises in effect to make good the loss; these promises, for the reasons above stated do not make the defendant liable to the plaintiff. The declaration in this respect bases the plaintiff’s right to recover not upon the wrongful conduct of the defendant, but upon his failure to keep his promise to the bank.

The allegations fall far short of stating concisely and with substantial certainty the substantive facts necessary to constitute a cause of action as required by the practice act. They are so obscure, indefinite and involved that it is impossible to determine upon what ground the plaintiff charges the defendant with liability. A defendant is entitled to know with reasonable certainty the ground upon which the plaintiff seeks to recover, that he may be able to make answer thereto and be informed of the issues he is called upon to meet. Unless the declaration sets forth in definite terms what those issues are, it cannot be determined what rules of law are applicable thereto.

Order sustaining demurrer affirmed.