174 N.Y. 272 | NY | 1903
Lead Opinion
The plaintiff sought to recover damages from the defendants, husband and wife, for breach of a contract. The plaintiff alleges that he is a professional singer and that a contract of employment was made with him. The husband alone has demurred to the complaint upon the sole ground that several causes of action have been improperly united in the complaint. The court overruled the demurrer and the order was affirmed on appeal. The case comes here upon appeal with a question certified, which in substance is, whether the complaint is open to the objection stated in the demurrer.
There are numerous questions that sometimes arise upon pleadings with which we are not at all concerned in the disposition of this case. The complaint may be defective in clearness of statement or in logical order, and the plaintiff may not be able at the trial to prove his case as stated. The objection must be determined upon a view of the whole complaint reasonably construed with reference to the facts stated and every inference flowing from such facts. We are not to fasten upon a word, a phrase or a sentence in the complaint and give it a meaning which it will not fairly bear in order to sustain the demurrer. Every reasonable and fair intendment is to be made in support of the pleading. (Zabriskie v. Smith,
It is provided by section 497 of the Code of Civil Procedure that when a demurrer to the complaint is allowed on the ground that two or more causes of action have been improperly united, the court may direct that the action be divided into as many actions as are necessary for the proper determination of the causes of action therein stated. This plainly implies that, in order to sustain a demurrer on this ground, the complaint must contain two or more causes of action so well stated and *275 so complete and perfect that the court can divide them into the necessary number of actions. It will not do to say that the complaint contains one good cause of action and some vague and ambiguous words or expressions that by construction may be made to point to another cause of action. All that must be corrected, not by demurrer, but by motion. So that, in order to sustain the demurrer in this case, we must find two causes of action plainly stated, each in itself complete and perfect upon a fair and reasonable construction of the language employed. The complaint in form and upon its face does not profess to state more than one cause of action. It all relates to one subject, although divided into eight clauses or paragraphs, but no reference is anywhere made to a second cause of action as such. The only words that can possibly be claimed to point to more than one cause of action are to be found in the second and third paragraphs, which read as follows, the italics being our own: "That the defendant Henry Wolfsohn conducts a musical bureau for the purpose of securing concert and recital engagements for high-class artists, which business is owned by his wife, the defendant Paula Wolfsohn, the defendant Henry Wolfsohn acting as her agent, although saidHenry Wolfsohn pretends to be conducting said agency on his ownbehalf and without disclosing his said wife as principal." Here we have a clear and distinct allegation of a fact, namely, that the husband is conducting a certain business as agent for his wife, the business being owned by her. This is an admitted fact that has a material bearing upon the construction of the complaint. The truth and the fact being that the husband is conducting the wife's business as her agent, the other words in italics are immaterial, irrelevant or redundant and could be stricken out on motion. So long as the fact was that the husband was the agent of the wife in the conduct of her business it was of no consequence that he pretended to be something else. The husband's pretenses add nothing to, nor do they take anything from, the significance of the conceded fact that he was the agent of his wife, so that we may pass over this paragraph as *276 containing nothing except a very proper allegation that the husband was the business agent of the wife. The redundant words referred to contain no element of a cause of action and may be rejected as the merest surplusage.
The next or third paragraph is the one upon which the learned counsel for the demurring defendant has sought to construct a second cause of action, and that reads as follows: "That on or about the 7th day of June, 1901, a contract was entered into between plaintiff and said defendant Henry Wolfsohn, acting as agent for his undisclosed principal Paula Wolfsohn, whereby plaintiff appointed said Henry Wolfsohn his sole manager for America and Canada for a term of one year, agreeing to pay said Wolfsohn ten per cent of all plaintiff's engagements, and also agreeing to submit to him all his business communications and not to accept any engagements without his consent." The argument in support of the demurrer rests entirely upon the use of the single word "undisclosed," in the foregoing quotation. If that word is rejected, then the paragraph would contain a plain statement that on a certain day the plaintiff and the husband, acting as agent for his principal the wife, entered into a certain contract with respect to a certain subject-matter which is more particularly described. It is alleged that whatever contract the husband made, he made it as agent for his wife. That was the capacity in which he made the promise and that is the capacity in which the plaintiff accepted it. The word "undisclosed" may be treated as a mere descriptio personæ and of no more consequence than if the pleader had described the wife, who was the principal, by any other adjective. The parties to the contract are stated to be the plaintiff on the one part and the husband as agent on the other, and being such agent and carrying on the business for his wife as alleged, he had the power to bind her by the contract and on the face of the complaint she is bound. So it is plain that the second cause of action in this complaint, if there be one, must be built up entirely upon the use of the word "undisclosed" and that I think would be quite too *277 narrow and technical a construction of the language of the complaint.
The learned counsel for the demurring defendant has made an ingenious and refined argument to prove that the agent who concededly acted as agent for his principal in making the contract, at the same time omitted to disclose his principal. If it be true, as alleged, that the husband acted as agent of the wife in making the promise, it must have been accepted by the plaintiff in the character in which it was made, and so it is rather difficult to see how it could be possible that the principal still remained undisclosed. The rule of law applicable to such a case was stated by Judge MARTIN in De Remer v.Brown (
It was quite possible and competent for the husband when making the contract, to bind himself and his wife jointly. In that case there would be but one contract and but one cause of action, and possibly that was the theory upon which the learned counsel for the plaintiff constructed the complaint. It may be that he will not be able to establish such a contract *279 at the trial. But the question here is whether such a contract is not stated on the face of the complaint. After stating the making of the contract as above described, the complaint avers that thedefendants agreed on their part to arrange a concert tour for the plaintiff, to secure engagements or bookings for him in advance, arrange dates, routes, etc., and do all the preliminary work required of a manager of a high-class artist. Now this amounts to an allegation that the defendants jointly undertook to do what is therein alleged, and that the plaintiff accepted the promise in that character. The contract was a verbal one and an allegation that the defendants agreed to do certain things amounts, or may amount, to a statement of a joint contract. Then again it is alleged that the defendants committed a breach of the contract in refusing to perform its terms and conditions, and have not allowed the plaintiff to do the things which they engaged him for. It is difficult to see how the defendants jointly could have committed a breach of the contract unless they made it in that capacity. Clearly the meeting of minds charged in the complaint was between the husband as agent for his wife on the one side and the plaintiff on the other. As already remarked the complaint states what took place only in substance and according to its legal effect, and then it proceeds in these words: "Whereby defendants agreed on their part," etc. It is then alleged that the defendants refused to make engagements for the plaintiff to sing at concerts and canceled engagements already secured in violation of the agreement. Then it is stated that the defendants induced the plaintiff to pay to them the sum of $350 to be used in advertising, and that they have refused to account for the expenditure or to return that sum to the plaintiff. This is a distinct allegation of the payment of money to the defendants jointly which, according to the allegations of the complaint, the plaintiff was entitled to have returned to him. So that upon any view of this pleading there is but one cause of action stated upon a contract either of the wife alone, made by her agent, or by husband and wife jointly. If it is *280 indefinite or uncertain in this respect the remedy to correct it is by motion and not by demurrer.
I have, perhaps, discussed the question presented by this appeal at greater length than the importance of the question would seem to demand. It is due to the counsel on both sides to say, in conclusion, that if they had carefully studied how to inject vexatious questions into a very simple case, they could not have met with a greater measure of success than seems to be evidenced by this record. This remark applies equally to the form of the complaint and the form of the demurrer. I think on the whole that the case was properly decided below and that the order appealed from should be affirmed, with costs in all courts, with leave to the demurring defendant to answer on payment of costs. The question certified should be answered in the negative.
Dissenting Opinion
While special pleading at common law was a marvel of legal accuracy and clearness and had the advantage of presenting for determination by the jury sharply defined issues of fact formulated in advance of the trial, still, owing to its technical character substantial causes of action and defenses were often excluded and at times a party was defeated, not by the proofs, but by the pleadings. To correct these evils the Code introduced a radically different system of pleading, and required a party to state in his complaint only "a plain and concise statement of the facts constituting each cause of action without unnecessary repetition, and the demand of the judgment to which the plaintiff supposes himself entitled." Under the new system pleadings have been construed with great liberality, but manifestly there must be some limit to the application of this rule in order to protect the rights of the adverse party. The great strength of the complaint now before us lies, if I may be pardoned the seeming contradiction, in its weakness, its prolixity and its confusion of expression. It means all things to all men. The judge at Special Term and the majority of the judges in the Appellate Division have held that the complaint states a cause of action on which the *281 defendant Paula Wolfsohn (the wife of the appealing defendant) is liable, because the appellant was her agent in making the contract for the breach of which the action is brought and on which the appellant is liable, because, though making the contract as an agent, he failed to disclose his principal; and both courts have held that the defendants could be sued in a single action. The question of joinder of parties upon which the decision below proceeded is not passed upon by my associates, some of whom construe the complaint as alleging a joint contract of both defendants, while the prevailing opinion suggests a doubt whether any cause of action is charged against the appellant. Thus the draftsman has formulated a complaint as to the construction of which the courts are not in accord, though all agree the decision should be in his favor. He may succeed on the trial by proving either a joint liability of both defendants or the several liability of the appellant by by reason of his failure to disclose the name of his principal, though it is yet to be determined whether an agent and an undisclosed principal can be sued in the same action, since that question will not survive the withdrawal of the demurrer. It seems to me, therefore, that the pleader is not justly subject to the criticism passed on him in the prevailing opinion. How could the most learned, logical and accurate of pleaders have done as well for his client?
Section 484 of the Code of Civil Procedure provides that causes of action can be joined only when, except as otherwise prescribed by law, they affect all the parties to the action. By section 488 a defendant may demur when causes of action have improperly been united. The objection that the causes of action stated do not affect all the defendants is as good a ground for demurrer as the objection that one cause of action is on a contract and another for personal injury. (Nichols v. Drew,
We now come to an examination of the allegations of the complaint. It first states that the appellant carried on business ostensibly on his own behalf, but, in fact, as the agent of his wife, and without disclosing his wife as principal; that a contract was entered into between the plaintiff and the appellant "acting as agent of his undisclosed principal, Paula Wolfsohn," whereby the plaintiff appointed the appellant his manager in America for a definite term and "whereby defendants agreed on their part that said Henry Wolfsohn would arrange a concert tour for the plaintiff," that the plaintiff performed the terms and conditions of said contract on his part; and "that defendants have wholly failed and refused on their part to perform the terms and conditions of the contract above set forth." It also alleged that the plaintiff paid *283
the defendants a sum of money for which they failed to account. This last states a joint liability on the part of both defendants, but it is plainly a separate cause of action, for the suit is brought chiefly for damages for breach of the contract above recited. It is doubtless true that in a certain sense the breach of the contract declared on gave rise to but a single claim, but it by no means follows that it constituted but a single cause of action. Whether it created more than one cause of action depends on the number of parties liable for the breach and the character of their liability. A single claim even against a single party may give rise to separate causes of action when that claim is sought to be enforced on different grounds. In Wiles
v. Suydam (
That the liability of an agent of an undisclosed principal and that of his principal is several seems to me very clearly settled by authority. Judge Story, referring to this subject, says (Contracts, 266): "But we are not, therefore, to infer that the principal may not also, when he is afterwards discovered, be liable for the payment of the price of the same goods; for, in many cases of this sort, as we shall hereafter abundantly see, the principal and agent may both be severally liable on the same contract." Mr. Meechem lays down the rule (Agency, sec. 689): "The other party is at liberty on discovering the principal to elect to hold either the agent or the principal, but he cannot hold both." The authorities differ as to what constitutes an election, and in some cases it has even been held that the recovery of a judgment against the agent without satisfaction will not be deemed conclusive of such election. But no authority or text writer gainsays the doctrine that the question is one of election between the two, not of joint liability. So, inTuthill v. Wilson (
At common law only parties jointly liable could be sued in the same action. This rule has been modified with us, but only to a certain extent. By section 454 of the Code of Civil *286
Procedure (re-enactment of section 120, Code of Procedure, and of provisions of the Revised Statutes) two or more persons severally liable on the same written instrument may be included in the same action as defendants. But the right is strictly confined to the case of a written instrument. This is apparent from the course of legislation. As this section was originally enacted in 1876, it embraced in terms the case of parties "severally liable for the same demand, and, without reckoning offsets or counterclaims in the same amount, although upon different instruments." In 1877 the provision last cited was stricken out, leaving it in the form in which it now stands. Under this section it has been held that the maker and guarantor of a promissory note could not be sued in the same action, because the contract of guaranty was separate from the contract imported by the note, and that hence a demurrer lay by each defendant for improper joinder of action. (Barton
v. Speis, 5 Hun, 60.) The decision seems to have been accepted as the law in the Supreme Court and generally followed in its decisions. The case of McLean v. Sexton (
If, however, we assume that the construction of the complaint adopted by Judge O'BRIEN is correct, that the contract first declared on is that of the wife alone and that the allegations are insufficient to charge the husband with liability thereon, then it would seem perfectly plain that the demurrer is well founded, for then there are two causes of action stated, *287 one against the wife alone on the original contract, and the second for money paid to the husband and wife jointly. There is but one theory on which it is possible to sustain this complaint, that is that the original contract was not the contract of the wife as principal nor that of the husband as an agent who contracted in his own name or without disclosing his principal, but the joint contract of both husband and wife. How this theory can be accepted, in face of the direct allegation that the contract was made by the husband, as agent of the wife, I cannot see.
The interlocutory judgment should be reversed, with costs to the appellant in all the courts, and the action against the appellant severed from that against the other defendant, with leave to the plaintiff to serve an amended complaint in the severed action upon payment of such costs.
PARKER, Ch. J., BARTLETT, HAIGHT, VANN, JJ. (and WERNER, J., in result), concur with O'BRIEN. J.; CULLEN, J., reads dissenting opinion.
Judgment affirmed.