Reed v. Drake, 7 Wend. 345

Reed v. Drake

7 Wend. 345 | N.Y. Sup. Ct. | 1831

By the Court,

Nelson, J.

The bond offered in evidence by the plaintiff was signed and sealed before the condition, immediately after the penal part of the bond, and the reading of the condition was objected to as being no part of the bond. In the stage of the trial when the objection was made, the proof *349of the condition was immaterial, and if the objection was sound the evidence was complete to support the declaration; but if the condition was material, the proof of its execution and delivery was sufficient. The subscribing witness swore that mu. tual bonds, of which this was one, were executed and delivered by the parties, in pursuance of an agreement to submit to arbitrators certain matters in difference. The condition to each bond was to abide by the award to be made by them, and that the condition was written and read as a part of the instrument at the time of the execution and delivery. The condition was as much a part of the instrument as if the signature had been at the foot of it. The objection that there was a variance between the declaration and bond, as the condition was not set out, is obviously too untenable to require notice.

When the plaintiff rested, the defendant’s counsel moved for a nonsuit, on the ground that, as there was a condition to the bond for the performance of covenants, the plaintiff was bound to assign breaches before any damages could be assessed by the jury. It is true that the jury could not assess damages upon a breach not assigned according to the requirements of the statute; still, as the execution of the bond was proved, the plaintiff would be entitled to nominal damages, and the court was therefore right in refusing to nonsuit him. Hodges v. Suffett, 2 Johns. Cas. 407.

Under the replication to the second plea, the plaintiff offered in evidence the award of the arbitrators, which was objected to on the ground that the only point in issue upon the second plea, was whether there was a condition to the bond as set forth in the replication. This was true, and therefore the award was admitted by the pleadings; but proving it, notwithstanding, would not be error. The judge, among other things, charged the jury, if they found for the plaintiff, they should assess damages to the amount of the award. In this he erred, as there was no assignment of breaches in the declaration. The condition of the bond upon which the suit was brought, is not set out in the declaration, nor any breaches assigned in it. This was not necessary under the statute of 1813, 1 R. L¿ 518, § 7. Munro v. Alaire, 2 Caines, 327. The assignment might have been made in the replication, if the *350nature of the plea demanded it; or, if the plea did not demand it, the plaintiff might have suggested them on the circuit or nisi prius roll, pursuant to the statute, before trial. 2 Saund. 187, (a),(b). Tuxbury v. Miller, 19 Johns. R. 311. The statute of 1813, 1 R. L. 518, sec. 7, was substantially a copy of the English act of the 8th & 9th William 3d, ch. 11, sec. 8 ; and this court has considered the decisions under this act as applicable to ours. Munro v. Alaire, 2 Caines, 329. Van Benthuysen v. Dewitt, et al., 4 Johns. R. 213. Smith v. Jansen, 8 id. 115. It was compulsory on the plaintiffto assign breaches, Van Benthuysen v. Dewitt, etal., but he might do so in any of the modes above stated. The revised statues have changed the law in this particular.' It is now enacted, “ when an action shall be prosecuted in any court of láw, upon any bond, for the breaches of any condition other than the payment of money, &c. the plaintiff in his declaration, shall assign the specific breaches for which the action is brought.” 2 R. S. 378, § 5.. This differs from the law of 1813, the 7th section of which provided that in all actions, prosecuted in any court of record, upon any bond &c. “ the plaintiff shall .assign as many breaches as he may think fit,” &c. but does not direct it to be done in the declaration. The revised statutes undoubtedly intended to abolish the different modes of assigning breaches by the plaintiff in actions of this kind, which had grown up under the act of 8th & 9th William 3d, and adopted under ours, and to make it compulsory on the plaintiff to assign them in the declaration. This alteration is an improvement of the law, by simplifying and abridging the .pleadings and diminishing the costs. As under the statute of 1813, it was compulsory on the plaintiff to assign breaches in some one of the different modes authorized, if he sought to recover any thing beyond nominal damages on bonds within the statute, so now, under the revised statutes, he must assign the breaches in the declaration, if he seeks to recover beyond nominal damages.

It is contended by xhe defendant in error that the revised statutes authorize this court to amend the defect, by allowing an assignment of breaches in the declaration now to be 'made. The revised statutes provide that no judgment shall be reversed, &c. for any defect of form, or any other *351imperfection which, by law, might be amended by the court in which such judgment was rendered, but such imperfections shall be supplied or amended, or deemed to have been supplied or amended by the court into which the judgment is removed by the writ of error. 5 R. S. 601, § 60. In another part of the same volume, page 424, the defects and imperfections which may be amended by the court in which the judgment is rendered are pointed out. These provisions are very comprehensive, b.ut after a careful examination of them, I am satisfied they do not cover the defect under consideration. The 4th section allows amendments of the record, pleadings, process, &c. after judgment, in affirmance of it in matters of form only for any mispleading. The 5th and 9th subdivisions of section 7, to which I have been referred, do not meet the objection in this case. By the 5th subdivision it is enacted, the verdict shall not be stayed, or judgment upon it reversed for “ mispleading,” or “ insufficient pleadingin the 9th subdivision, “ nor for omitting any allegation or averment of any matters,” without proving which, the jury ought not to have given such verdict. In these instances the defect might have been taken advantage of by demurrer, as they were apparent upon the pleadings; and the object of the provision undoubtedly was to compel the party to do so, and not lie by till after trial, or judgment. But the objection taken in this case to the verdict and judgment, did not appear on the pleadings, and the first opportunity the defendant had to object to the assessment of damages, for want of the assignment of breaches in the declaration, was upon the trial, which was done, as appears from the bill of exceptions. The defendant might well suppose, until the plaintiff undertook to assess special damages on the trial, from the fact that no special damages were claimed by the pleadings, that he sought only nominal damages, to which he was entitled, without any special assignment. Again; the 8th section, page 425, referring to the 7th section and its subdivisions, provides, that “ the omissions, imperfections, defects and variances in the preceding section enumerated, and all others of the like nature, not being against the right and justice of the matter of the suit, and not altering the issue between the parties or trial, shall be supplied and amended by the *352court where the judgment shall be given, or by thé court into which such judgment shall be removed by writ of error.” Now, allowing the plaintiff to amend his declaration, by assigning breaches upon the condition of the bond, must necessarily alter the issue between the parties, for the reason that the rules of pleading require the defendant to answer each breach assigned specifically. Postmaster-General v. Cochran, 2 Johns. R. 413. The amendment of an assignment of breaches could not be allowed without permitting the defendant to answer, the consequence of which would be that a new issue or issues would or might be formed. The assignment of breaches on a bond within the statute, as, before shewn, must now be in the declaration; the breaches usually constitute the subject matter of litigation, the gravamen of the suit, and the defendant should have an opportunity deliberately to answer them by pleading; since the change of the practice by the revised statutes, to allow an amendment of an entire assignment of breaches in cases of this kind would be nearly tantamount to allowing an entire declaration by way of amendment. There are many other points made in this case, but it is unnecessary to examine them. The judgment must be reversed, the costs to abide the event, and a venire de novo must issue. No doubt the court below will allow the plaintiff to amend his declaration on terms.