Deane v. Echols ( 1894 )

Mr. Justice Morris

delivered the opinion of the Court:

It is clear beyond reasonable controversy, that the judgment enteréd in this case is erroneous in the matter of the allowance of interest from July 18, 1888. The error, no doubt, was one of inadvertence on the part of the court, or more probably on the part of'the clerk in entering it. But this inadvertence was due to the fault of the plaintiffs in claiming such interest in their declaration in direct antagonism to the showing made by them. For their claim is in substance for the return of the amount paid by them as purchase money; and they themselves show conclusively that this sum was not paid on the day on which the contract was made (July 18, 1888), and from which interest is claimed, but that payment extended over three years.

On the face of the declaration, the claim of interest from July 18, 1888, is wholly unjustifiable; and it was a palpable falsehood,' though undoubtedly an unintentional one, to state in the affidavit that such interest was due from the defendant to the plaintiffs. Under their claim as stated, the plaintiffs themselves show conclusively that they are not entitled to any such interest.

An attempt was made in argument to show that the appellees had paid interest monthly on all the deferred payments, and that in some way the interest so paid exceeds the amount now claimed by them. The record affords no basis whatever for any such argument. The appellees seem to have misconstrued their remedy in this cause to some extent. They have apparently proceeded upon the theory that the refusal of the appellant to execute a deed of conveyance, .as he had contracted to do, was a rescission of the contract; and that upon such refusal a'cause of action had accrued to them to recover back the money which they had paid and the money which they had expended upon the property, with interest upon the whole from the date of the contract. The right to such interest, as we have seen, cannot be sustained upon any grounds. But neither was there in this case any right to recover back any money paid or expended. There was no contract, either express or implied, between the appellant and the appellees, whereby he could be held liable for the repayment of any such money. His contract was to make a deed of conveyance of the property upon' their payment of the amount of the purchase money. Their cause of action arose on the 22d day of December, 1891, upon his refusal to perform his contract, and was for damages sustained by them in consequence of such refusal, not for the recovery of the money which they had paid or expended. The proper suit, in other words, was a suit for unliquidated damages, although it might well be that the actual measure of such damages in this instance might be the amount of money paid and expended by the appellees as stated in the declaration. Such a suit is not a suit on open account, such as is referred to in Section 825 of the Revised Statutes of the United States for the District of Columbia, authorizing the rendition of summary judgments in actions upon open accounts when they are verified by affidavit. There is no account whatever 'in this case. Nor is the laction one ex contráctil within the purview of what is known 'as the 73d rule of the Supreme Court of the District of Columbia, wherein similar judgments are authorized upon affidavit “in any action arising ex co7itraciu'.’ The actions ex co7ttractu, to which the rule has reference, are necessarily such as arise upon money demands pure and simple — actions for a liquidated and specific amount of money, for the payment of which there is an express contract between the parties, or for which the law implies a contract — not actions for breach of contract, when that contract is for something else than money. Recovery might as well be had under the rule for a breach of contract to keep in repair, or for a breach of contract to deliver goods, or for a breach of contract for marriage, as for breach of contract to execute and deliver a deed. The action here is not for money had and received, but for unliquidated damages; and until those damages are ascertained in some of the ways known to the law, such as the verdict of a jury of inquiry, there can be no final judgment for them. These are all elementary principles; but they seem to have been entirely ignored in this case.

But. there is another error apparent upon the record which we should not overlook. We cannot regard the demurrer of the plaintiffs to the plea of coverture as well founded in law. Two grounds are assigned for this demurrer: 1st. An estoppel on the part of the defendant to deny that the money fraudulently received by him was the sole and separate property of the plaintiffs; 2d. That-a plea in abatement could not be filed after the overruling of the defendants’ demurrer. The first ground was not at all referred to in argument before us, and may be regarded as waived or abandoned. The objection, if such it is, should be availed of by replication, not by demurrer; and plainly there is no ground in the record for the allegation or implication of fraud here made. The refusal of the appellant to perform his agreement may have been.exceedingly reprehensible; but there is nothing in the record to show fraud on his part. If such there was, and the fraud enters into the cause of action of the plaintiffs, it should be set up by affirmative allegation.

It is understood, however, that this demurrer was sustained by the court below upon the second ground, namely, that a plea in abatement cannot be interposed by a defendant after a demurrer by him has been overruled, and further time has been given to him to plead. The theory upon which it is sought to maintain this position is, that the old doctrine of imparlance is applicable.to this case; that the allowance of imparlance was the continuance of a cause for a term to give the defendant time to imparl or negotiate with his adversary; that it became a time given to plead in the event that negotiation failed; and after a general imparlance, which was when a continuance was asked without any special reservation of right, no plea in abatement could be filed; that, if it was desired by a defendant to reserve the right to file such a plea, he was required to pray a special imparlance; that the time given in this case after the overruling of the defendant’s demurrer was the equivalent of a general imparlance-; and that, therefore, the defendant was precluded at this stage of the cause from interposing a plea in abatement. We cannot accept the correctness of this position. Besides the fact that a general imparlance in its proper technical meaning implies the continuance of a cause for the term, which was not the case in the present instance, we cannot regard the doctrine of imparlance as being now in force in the District of Columbia. It has been abolished now even in England; and since the.act of Congress of March 3, 1863 (12 Stat, 763), which created the Supreme Court of the District of Columbia, and gave it authority to establish rules of practice, which authority that court has exercised by the promulgation of rules of practice wherein the time and order of pleading have been specifically prescribed, there is no longer any room in our civil procedure for the doctrine of imparlances.

Imparlance was a matter of grace and favor. A general imparlance gave a defendant a full term of court to negotiate and plead, on condition that he should not then interpose any dilatory pleas. Such pleas were required to be pleaded, if at all, at the term of the court at which the defendant was brought in; although by procuring a special imparlance the right to file such pleas might be extended to the term to which the imparlance extended. When the time for pleading is fixed and definite, as it now is by the rules of the court, there is no room for imparlance or negotiation, and no occasion to make terms with the court — no reason to insist on the waiver by the defendant of dilatory pleas as the condition for the delay given to him for the imparlance.

It is very true that, under the strict rules of the common law, when a party interposed a demurrer, he was regarded as electing to abide by the decision of the case on the question of law raised by the demurrer, and he was not entitled as a matter of right to plead over, in the event that his demurrer should be found insufficient. Judgment was entered upon the demurrer, unless the court in overruling it granted leave to plead over. But this leave to plead over is now universally granted as a matter of course, unless the party who files the demurrer indicates his determination to stand by it; and refusal to grant such leave is almost an unheard of thing. We do not say that it is a matter of right, for the refusal of which a writ of error would lie. But while it remains in form a matter of grace and favor, and so far a matter of grace and favor that a court may properly prescribe limitations upon the time for pleading, and even upon the character of plea that may be filed, there is no limitation to be presumed upon it other than such as is specially prescribed by the order or necessarily implied in the concession. It may be, perhaps, that when a party has asked leave of court to plead, he may not thereafter plead to the jurisdiction of the court, inasmuch as the asking of leave to plead was a virtual admission of the jurisdiction. But this it is unnecessary for us to decide.

But when the court has given a general leave to plead over within a certain specified time, and such leave to implead involves no idea of negotiation or imparlance with one’s opponent, it is not apparent why a party should be precluded from interposing a plea in abatement as a defense to the action. We are not advised that there has been any practice to that effect in the District of Columbia; indeed, so far as we have been advised, the practice has been directly the reverse, and to the effect that pleas in abatement may be filed after a demurrer has been overruled. In this we see nothing unreasonable, and nothing that tends unduly or improperly to delay the administration of justice. If a defendant chooses to rest his case upon a plea in abatement and issue is joined with him upon it, there can be no good ground on either side to complain of delay. A judgment may be thereby more speedily reached than by the general issue.

For the reasons which we have stated, we are of opinion that the judgment rendered by the court below in this case was erroneous, and it must therefore be reversed, with costs, and the cause must be remanded to that court with directions to vacate the judgment and to overrule the demurrer interposed by the plaintiffs to the defendant’s plea in abatement, but with leave to the plaintiffs to reply to said plea as they may be advised, And it is so ordered.