Brooks v. Howison , 63 N.H. 382 ( 1885 )

Both parties put their contention on the ground that between themselves, and for the purposes of this case, the nine plaintiffs and the defendant have the rights of owners of the furniture in common. Each of them necessarily has an equal right to its possession. It came rightfully into the defendant's possession, and his right to keep it is equal to that of each of the plaintiffs. But mere possession of the property, a part of which is carpets, is very different from the consuming use he made of it a year and a half in his hotel. If it were possible for him to carry his use of his share to the point of destruction without injury to the plaintiffs, they could not complain of his doing what he pleased with his own. But his right to wear out his one tenth part is not a right to wear out their nine tenths; and his right to use his share is as far from a right to make a profitable or unprofitable use of their shares without compensation, as from a right to retain all money received by him for a bailee's use of the whole.

If our common law, instead of being in general a system of natural principles, necessarily adopted by custom and common consent, and necessarily conformable to the progress of society, were an ancient legislative code enacted by a court, much of it would be ill adapted to the situation and wants of this country, and repugnant to what are universally regarded as indispensable arrangements of modern life. Other harsh and repulsive doctrines, as well as the feudal tenure of land (Cole v. Lake Co., 54 N.H. 242, 279, 285, 286), growing out of social conditions that have ceased, and incompatible with the increase of trade, productive industry, and personal estate, have become obsolete; and the law has not fixed a day when the precedents of its adaptation to the mutability of human affairs shall no longer be in force. The unwritten rules of ownership in common, prospectively implied from the exigencies of business by an enlightened public sense of expediency, obligation, and right, do not expand each share-owner's necessary right of possession into an unnecessary right of uncompensated use; nor make the undivided title a pretext for denying him any necessary remedy, in contract or tort, for a contractual or tortious violation of his proprietorship; nor restrict the co-tenants' rights of action against each other to cases of destruction, ouster, or an actual or constructive appointment of a bailiff, liable to account for what he ought to receive, or merely for his receipt of something from a third person; nor forbid an equitable contract to be inferred in a case like this by the trier of the facts from the character and destination of the property, the market value of its use, and other circumstantial evidence of the understanding upon which the owners' community of interest was formed, and upon which it remains unless removed by mutual agreement. Emphasis is to be placed upon the simple merits of the controversy, and while the legal fiction of a contract implied by law may be invented and used to enforce the performance of a legal duty (Sceva v. True, 53 N.H. 627, Kelley v. Davis, 49 N.H. 187), it is not the function of the distinction between unity and severalty of title to turn aside the legal Justice of the case.

The title of none of the shares being disputed, and the defendant's use being in its extent and effect what it was, it might not be easy for a jury to find there was not an original and unchanged understanding that he should account for the plaintiffs' shares of the market value of such a use. They had notified him he must pay. He understood they claimed he should allow the value of the use as a payment on the Vose note, or, in other words, should allow nine tenths of that value on the debt of contribution due him from them as his co-sureties on the note. He expected to pay in that way if he could not avoid payment without giving up the furniture. Two or three times, when spoken to about payment, he told them they might take the property: but when they proposed to take it, he was not ready to give it up, and retained it. They understood he was to pay for the use; as co-sureties and co-mortgagees, they expected the use would be allowed as a payment on the Vose note: and he, finding they would not permit his use without such payment, necessarily came to the same understanding. Their minds met in an implied agreement.

His use of the common property was worth $300, — of which sum by the agreement, one tenth belonged to him, and nine tenths to the nine plaintiffs. When he refused to perform the agreement, the plaintiffs were entitled to an adequate action. The necessity of a plenary remedy for the infringement of a legal right, accepted as a general rule of the common law, authorizes and requires the use of convenient procedure for ascertaining and establishing the right, and obtaining the remedy. Walker v. Walker [ante 321]. If the defendant's promise had been to pay his co-tenants their shares in money, and had not been connected with any other transaction requiring a joint settlement, the suit is assumpsit would have been a common-law remedy, appropriate, complete, and not taken away by Gen. Laws, c. 220, s. 2. An action at law by one partner or tenant in common against his co-partner or co-tenant may be inadequate by reason of a practical difficulty in that procedure of adjusting complicated accounts, or related rights, or giving other relief than the establishment of a title, the return of property to its owner, and the payment of damages in money. The examination of the parties on oath, which formerly could be effected only in a court of equity, was regarded as authorized by the confidence they were supposed to have reposed in each other; and inadequacy of remedy in this direction at law was a basis of chancery jurisdiction. 1 Ch. Pl. 39. But no one of these difficulties is presented by the cause of action stated in the declaration in this case.

These ten owners could join in a suit against a trespasser, and in assumpsit against their lessee for rent of the common property hired by one contract, because a joint action would be just, economical, sufficient, and convenient. For the same reason, this joint action could be maintained by nine tenths of the owners against their co-tenant, on his promise to pay them nine tenths of the value of the use in money. For some purposes, the distinct and divisible character of the owners' interests in the property and the damages, would be a material element of their rights: but as a mere technical theory, causing no actual obstruction of justice in a joint suit, it would not make ten suits necessary for the ten, nor nine suits necessary for the nine. There would be no obstacle of procedure requiring severance of action in either case. The plaintiffs might as conveniently join in the exercise of their several rights of action for divisible shares of damages, as in the exercise of their several rights of letting or selling divisible shares of the property. Their rights of recovering their shares of $300 in money could be established in this action of assumpsit, either by several judgments or one judgment in severalty, and could be enforced either by several executions, or one execution in severalty. Chauncy v. Ins. Co.,60 N.H. 428, 432; Cole v. Gilford [ante 60]. The value of the use could be as easily ascertained in this suit as in an action of all the owners or one of them against a stranger; and the value being found, nine tenths of it would be the shares of the plaintiffs, whose joinder, instead of being injurious to the defendant, would avoid multiplicity of suits and multiplicity of costs in a single controversy that should be settled in one suit, or in as few suits as possible. The joinder of the plaintiffs is not error; the demurrer should have been overruled; and the exception on this point is sustained.

But while the declaration, stating a cause of action at law on a promise to pay money, is not bad for misjoinder of parties, the facts found at the trial show that their rights require a different mode of procedure, and other remedy than an execution for damages in assumpsit. The defendant was to pay the plaintiffs their shares of the $300, not in money, but by allowing that sum on the Vose note. Three of the plaintiffs are insolvent; and the other six and the defendant are entitled to an application of the whole sum of $300 as a payment. There is a balance of contribution to be paid the defendant by the six solvent plaintiffs; for the collection of that balance, he should not be put to more litigation; and a complete adjustment cannot be made in assumpsit. There should be a computation of the balance due him; that amount should be deposited with the clerk for him; and when the deposit is made, there should be a decree that the note be deposited with the clerk to be cancelled. Strafford v. Welch,59 N.H. 46. Here is work for the bill in equity which was tried with the assumpsit, and which may be allowed as an amendment of the declaration in that action. Metcalf v. Gilmore, 59 N.H. 417.

The defendant's motion, that the plaintiffs be required to elect whether they would try the matters in controversy on the declaration at law, or on the bill in equity, was rightly denied. They were properly allowed to avail themselves of both forms of action, subject to the modes of trial to which either party was entitled. A plaintiff may need an action of contract and an action in tort, or counts in both forms, to meet the meritorious contingencies of his case. Rutherford v. Whitcher, 60 N.H. 110. A final adjustment and decree will be made at the trial term.

Case discharged.

BINGHAM, J., did not sit: the others concurred.