31 Mass. 156 | Mass. | 1833
delivered the opinion of the Court. [After stating the pleadings.] The second plea is objected to on two grounds ; first, that it is immaterial or an insufficient answer to the declaration ; and second, that if a good answer m substance, yet it is bad in form, for duplicity.
In order to determine whether this plea contains a substantial defence to the action, it is necessary to examine the provisions, of the indenture, as set forth in this plea, and ascer* tain the true meaning of the words there used.
The plaintiff contends that the condition must be performed by Trueman, in order to defeat this covenant; that there was nothing for the plaintiff to do ; that Trueman, to avail himself of this condition, must establish his right to a moiety of the schooner, and that upon his failure to do it within the time prescribed the covenant to pay was absolute; that in the con - dition two modes are prescribed by which this should be done, the one, by arbitration, the other, by suit at law ; the one, by agreement with the plaintiff, the other, without his consent or agreement; and that if the plaintiff declined the one, Trueman was bound to resort to the other. Now it is very obvious, that if this is the true construction, all the pleas in bar are bad.
It is here important to inquire, whether Trueman could maintain any adverse suit; because if he could not, this part of the condition was impossible, and so void, or the words must be construed so that the suit or process should be by the agreement of the plaintiff.
It appears from the indenture, as set forth in the declaration, that Trueman claimed to own one moiety of the schooner as tenant in common with Mitchell, for whom the plaintiff acted, and that this was the question which was to be tried in the manner prescribed in the proviso under consideration. We are of opinion that no adverse suit could be maintained, to determine the question which was in controversy between the parties. . One tenant in common of a chattel can maintain neither trespass, trover- nor replevin against his cotenant. If therefore an adverse suit was intended by the terms legal process, it was clearly impossible, and so an inoperative condition. But we do not believe that this proviso is chargeable with such absurdity. If by any fair interpretation it will admit of a construction which will give effect to all the expressions used, such c instruction should be adopted. It seems to us, that the
The defendants have alleged in their plea, that Trueman and his representative always were ready and offered to the plaintiff to agree upon a process or arbitration to determine the right to the moiety of the vessel in question, but that the plaintiff refused. Now we think here is stated a substantial defence to the action.
But there is a special demurrer, and the form of the plea is objected to on the ground of duplicity.
Duplicity, according to Gould on Pleading, 419, consists in alleging two or more distinct grounds of defence, when one of them would be as effectual in law as all of them. This is said to be inadmissible, because it produces useless prolixity and tends to confusion and the multiplication of issues. The rule requires that every plea should be confined to a single ground of defence ; but it is not necessarily confined to a single fact, for several connected facts may be necessary to constitute one single complete ground of defence.
The duplicity is said to consist in this, that the defendants allege an unauthorized sale of Trueman’s share of the vessel, so that no title vested in Mitchell, and also an offer or tender by Trueman’s representative to agree on a process or arbitration according to the terms of the condition in the indenture. We have already endeavoured to show, that the latter allega tion is a good and complete ■ ground of defence against the action ; and if the former is also, then the plea is double.
But we think the former allegation amounts neither to a performance of the condition, nor an excuse for non-perform
This must be considered as inducement to the material allegation, or as mere surplusage. Perhaps it might not be necessary to make this statement at all, and the plea would have been good without it. If so, it may be rejected as surplusage. Although the gist of the defence is not a necessary consequence of this allegation, yet it may be considered as proper ly introductory to and explanatory of the material ground of defence, and so good as inducement. Gould, 52.
Upon the whole, we are of opinion that the second plea is good in substance and in form, and that as to this the demurrer must be overruled.
As this plea is to the whole action, and is decisive of the case, it is not necessary to consider the third and fourth very minutely.
The principal difference between the second and third pleas is, the alleging in the latter, that the offer to agree on the process or arbitration was made to Mitchell, instead of the plaintiff. Mitchell was not a party to the indenture. The agreement as to the mode of determining the controversy, was not to be made by the parties to the controversy. The expression used is the said parties, which we can con strue only as referring to the persons who had before been parties to the contract. For this cause then the third plea is bad.
The fourth plea is said to be double, because it alleges, that Lord and Trueman agreed that a certain suit then pending between Morgan and the Atlas Insurance Company should be the legal process whereby Trueman’s right to a moiety of the vessel should be determined ; that that suit was discontinued without the knowledge or consent of either of the parties to this agreement, and so became of no avail to determine their controversy ; and also that afterwards the administrator of Trueman offered to the plaintiff to agree on another suit or egal process or arbitration, to determine the controversy as to the ownership of a moiety of the schooner ; which the plaintiff refused.