23 Wend. 35 | N.Y. Sup. Ct. | 1840
*By the Court, The count is bad for duplicity ; the [ *36 ] objection pointed out by the demurrer. The plaintiffs have, in a single count, set out two distinct contracts, and alleged a breach which goes to both. Although both of the covenants relate to nearly the same subject matter, and the plaintiffs have attempted to treat them as though they constituted but a single contract, it is impossible to deny that the count is framed upon two several deeds, and the claim is to recover damages for the breach of both of the contracts. Profert is properly made of both deeds ; and it is clear that the defendants might plead non est factum to each of them; and
There is no precedent for this mode of declaring, and it would he likely to prove highly inconvenient in practice. Where the plaintiff has several distinct causes of action, of the same nature, he is allowed to insert several counts in his writ and declaration, for the very reason that the pleading would be bad for duplicity if they were all inserted in one count.
If the second contract had provided for the payment of the rent originally reserved, as well as the additional sum of $524, an action might then have been maintained upon that covenant for the whole sum, and only one count would have been necessary. But the second contract goes only to the farther or additional rent of $524, and the plaintiffs cannot recover the whole debt without counting upon both deeds.
In this case, the pleader might, in one count, have set out the original lease, assigning for breach the non-payment of the rent reserved by that deed : and then, in a second count, after stating the original lease, either at large or by a proper reference to the first count, he might have set out the covenant endorsed on the lease, and assigned for a breach the non-payment of the additional rent of $524, provided for by that instrument. The covenant endorsed on the lease was in itself a distinct and complete contract for the [ *37 ] payment of a specified sum of money, although it may be ^necessary to look into the other instrument to which it relates for the purpose of more fully understanding the true nature and scope of the undertaking. Such a course is often necessary where one written instrument refers to another ; but that does not prove that both instruments can be regarded as a single contract.
The stipulation in the second contract that the plaintiffs should have the same remedies for the collection of the additional rent as if it had been originally reserved in the lease, cannot alter the form of the remedy. Taken literally, the clause may mean, that the additional rent should be recoverable in an action on the lease alone, which is impossible. But the parties probably intended nothing more than that the additional sum mentioned in the second contract should be regarded as rent, and might be recovered as such, as effectually as though it had been originally reserved in the lease. We do not refuse to give effect to the agreement. We allow the plaintiffs to sue for, and recover this additional sum as rent — giving them as perfect a remedy as though the whole sum had been. reserved in the lease ; but in pursuing the remedy the plaintiffs must not depart from the established forms of pleadings. It is the business of the legislature and the courts to regulate the forms in which judicial proceedings shall be conducted; and those forms cannot be controlled by any stipulation of the parties, as, for example, an agreement that an action of covenant may be maintained on a contract by parol, or- that two distinct causes of action may be inserted in one count.
We are referred to the rule in pleading which allows a party in his complaint or defence to allege several distinct facts; but’that is subject to the qualification, that they must *all tend to a single point, [ *38 ] or connected proposition. If the different facts make out more than one cause of action or ground of defence, the pleading will be bad for duplicity.
Judgment for defendants.