30 N.H. 324 | Superior Court of New Hampshire | 1855
The declaration is not skilfully drawn. And upon a demurrer the two first counts could not probably be sustained, but upon a motion in arrest, after a verdict, many objections are waived. If the counts stated a defective title, advantage may be taken of the defect by a motion in arrest, but no such advantage can be taken of a title defectively stated.
To make a perfect title in assumpsit, it is necessary to state a sufficient consideration and a promise, and then to allege a breach of the contract. In its terms, as alleged here, the promise was to pay $276, in such portions and at such times as the directors of the company should require, agreeably to their act of incorporation. A proper assessment is alleged to have been made, notice of it given, and payment demanded, and a refusal to pay stated. In this statement there is all that is required to a perfect declaration in assumpsit. If the count had stopped there, perhaps a recovery should be had of the amount of the assessment only. But no question is raised as to the trial, or as to the assessment of damages.
The doubt arises in the case upon the allegation of these counts which follows the statement of the refusal to pay the
But it is apparent that it was the intention of the plaintiffs to take advantage of the provision of their charter to recover their whole note. There can be no misapprehension as to that, nor can the purpose of the suit to recover the whole be misunderstood. But it is app’arent that the plaintiffs’case is defectively stated. It omits, after the allegation of the charter liability to pay the whole note at once, in case any assessment shall not be paid within thirty days after notice and demand, the allegation of a promise to pay the whole, or a neglect, on request, to pay.
This is not an express promise to pay the whole, but a promise implied by law from the facts before alleged. Of such an implied promise the courts take notice, and of course they must see that the only omission here is of the formal allegation of this implied promise, after the facts are all stated which are necessary to raise the implication.
Such an omission is a case merely of a defective statement of a good cause, of which ho advantage can be taken by a motion in arrest after a verdict.
The motion, however, is founded not on any supposed defect of either of the counts, but upon the assumption that the two first counts are in debt, and the last in assumpsit * and that so they cannot be joined in the same action, and if joined, the judgment must be arrested. That debt and assumpsit cannot be joined, and that if joined, it furnishes good cause to arrest the judgment, is beyond question. And it is clear that the last count is in assumpsit; but it does not seem to us that there is any room to contend
We do not understand this to be a case of a penalty. It is simply a charter provision, that if the assessments are not paid, according to the charter, the company may recover the whole amount of the note by a-single suit, instead of being driven to many suits for successive payments. But the company hold this money as a fund to defray assessments during the continuance of the policy, and to be accounted for to the assured at its close, if the whole is not expended, and not as a forfeiture.
There is neither necessity for a declaration in debt in such case, nor any advantage in* it to either party. In truth, it is a case where a general assumpsit cannot be maintained, because the recovery is not on the ground of an indebtedness, but of the express stipulations of the contract, and of the act of incorporation referred to in it.
The declaration is defective as a statement of the cause of action, and if amended, it is quite as easy to make it a complete count in assumpsit, as in debt.
The charter of the company being referred to in the notes in suit,.the provisions of the charter really constituted a part of those contracts; and the case seems in no way distinguishable from the case as it would have been if the charter provision had been inserted in the premium-note itself. The promise being to pay $276, in such sums and at such times as the directors, agreeably to their charter, may require, provided that if any,assessment, duly made, shall be unpaid for thirty days after notice and demand, the whole amount of said note shall be at once paid.
In such a case, the allegations of this declaration would be substantially suitable and sufficient, and most clearly the declaration would be assumpsit, and not debt.
Motion in arrest denied.