2 Cai. Cas. 216 | N.Y. Sup. Ct. | 1804
delivered the opinion of the court. The motion cannot be granted. Great strictness was formerly observed in preventing two distinct causes of action being joined in the same declaration. Many of the old cases, however, have been overruled, and are not now regarded as law. But notwithstanding some relaxation in this respect, courts seem averse to permitting actions for torts to be blended with those *on contracts— either because they required different pleas, or because the judgments are not the same. These are the reasons generally assigned. It may seem arrogant, after they have been so often repeated, to say there is not much weight in either of them. A plaintiff may declare in one suit, on twenty different notes or simple contracts, to every one of which there may be a distinct defence. To one may be alleged duress — to another infancy — coverture to another^— usury to a fourth, and so on. On some of the counts there may be judgment for the plaintiff, and on others for the defendant. These variety of pleas must all be tried at once, and be spread on one record, but still no objections on that account are listened to, if all the counts are laid “ quasi ex contractu. Every suit, therefore, should have been confined to a single cause of action, or some better reason assigned for erecting an insurmountable barrier between tbrts and eontracts.
In the case cited from D. & E. the plaintiff had, to a count for the wrongful conversion of a spaniel, joined one for a breach of promise in not returning him ; and on demurrer the court held the declaration good, because not guilty might be pleaded to the whole. In the case in Wilson, a count for misfeasance in not delivering certain malt, and one in trover, were permitted to be joined. So you may declare against a carrier on the custom of - the realm and in trover.
There are some cases which seem opposed to these which have been cited, and particularly one in Benninsgage v. Ralphson, 2 Show. 250, pl. 256. Where the plaintiff declared, as here, on an assumpsit and on a warranty, and it was adjudged they-could not be joined; but modern prao-tice appears more reasonable, and is sufficiently established to form a precedent. This motion, too, is made after the merits have been fairly tried, and a verdict been found for the plaintiff, which it is our duty to-support if possible.
Upon the whole, as the gist of the action in both counts was a deceit, or misfeasance, in delivering the plaintiff a distempered horse, and as not guilty might have been pleaded to both, the plaintiff is within the rule that has been mentioned, and is entitled to judgment.
The plaintiff having taken a verdict on the second count, the regular way will be to enter one for the defendant on the' other, as it is done in all cases where there is a different finding on different counts. I will only subjoin that there will *be no inconsistency in perfecting the roll in this way, notwithstanding the plea
Motion denied.
The rule as now settled in the English courts seems to be, that where the injury arises out of a breach of contract, the action, though laid in tort, shall be deemed to arise ex contractu. See Powell v. Layton, 2 New Rep. 365; Max v. Roberts, ibid. 454, affirmed on a writ of error, 12 East, 88, and Weal v. King, ibid. 452, overruling that of Govett v. Radnidge, 3 East, 62
Mr. Tidd says tiña rule is not correct. That the result of the oases is, where the process, or plea and judgment, are different, the actions cannot be joined. Tidd's K. B. 12, n. (to) Mansfield, Ch. J. of C. B., says the propriety of'joining “ depends nbl on the judgment only but on the form of the plea also. 2 Now Rep, 374.
See Case v. Boughton, 11 Wend. 106.