Town of Woodstock v. Town of Hancock

62 Vt. 348 | Vt. | 1890

The opinion of the court was delivered by

Rowell, J.

As the first count does not allege a promise, it is claimed to be in case, and therefore improperly joined with the second count, which is in assumpsit. The action is founded on R. L. 2818 as amended by St. of 1886, No. 42, s. 4, which creates the right and prescribes the remedy, namely, “an action for money laid out and expended,” which means assumpsit. Hence that remedy is exclusive. Hill v. National Bank of Barre, 56 Vt. 582 ; Wheeler v. Wilson, 57 Vt. 157; Farmers and Mechanics National Bank v. Dearing, 91 U. S. 29, 35; Stafford v. Ingersol, 3 Hill, 38 ; Sedg. Const. Sts. (2d Ed.) 343.

When case and assumpsit are concurrent remedies, the allegation or the omission of a promise in a declaration may be ■determinative of the nature of the action. But here assumpsit is the only remedy; and when a plaintiff relies for recovery on ■compliance with the provisions of a statute and attempts to set forth compliance therewith, the court will look at the statute and take the allegations as intended to meet its provisions. Pennie v. Reis, 132 U. S. 470. This count alleges facts from which the law supposes the defendant to have promised, and in the-circumstances the substance of it must be taken to be in assumpsit and not in case, and this determines its nature.

Question has been made whether it is a good count in assumpsit, it not alleging a promise. But we do not decide the question, it not being necessary to decide it in order to dispose of the case.

The general count is adequate for all purposes, and is good: without alleging the giving of the statutory notiee to the defendant, as that notice is matter of evidence pertaining to the remedy.. This is like highway-damage cases, in which it is held not necessary to allege in the declaration the giving of the notice necessai’y to give a cause of action. So in an action by a school teacher-against a district for wages, it is not necessary to allege the-obtaining of a certificate of qualification, without which the-contract is null and voidl Doyan v. School District, 35 Vt. 520.

The demurrer being to the whole declaration and no misjoinder, one count being good, judgment must go against the-defendant.

Judgment affirmed and cause remanded~