Pickering v. DeRochemont , 45 N.H. 67 ( 1863 )

Sargent, J.

The first question raised by the motion for a nonsuit is as to a variance between the declaration and the specification and the evidence introduced in support of it. It is objected that the declaration alleges an indebtedness of the defendant to the plaintiffs jointly, while the specification and the evidence (the auditor’s report,) state and prove an indebtedness to the wife alone before marriage. This objection, if seasonably taken, is well founded. The contracts stated in the declaration and in the specification are entirely different. The declaration is, that the defendant being indebted to the plaintiffs, on, &c., in the sum of, &c., for money before that time had and received by the defendant, for the plaintiffs’ use, in consideration thereof, then and there promised the plaintiffs to pay them, &c.

The 1st, 2d, 4th, 6th, 8th and 9th counts in the specification claim one seventh part of the avails of certain real estate and slaves, and the hire and earnings of said slaves, and the Government compensation paid for said slaves and for certain other moneys, all which it is alleged came into defendant’s hands, in Demerara, in trust for the seven children and heirs of Mrs. M. L. S. Dewitt, late of said Demerara, who died December 6, 1828, of which said seven children and heirs, the plaintiff, Mrs. Pickering, is one.

The 3d, 5th and 7th counts in the specification claim one half of the avails of certain other slaves, and their hire and earnings, and the Government compensation paid for the same, which it is alleged came into the de fendant’s hands in said Demerara, in trust for two of the minor children and heirs of said Mrs. Dewitt, viz: Antoinette and Sophia, the plain tiffs.

The 10th count claims the share of the plaintiff, Sophia, as one of the heirs to the real and personal estate of Mrs. M. L. B. Dewitt, late of Demerara aforesaid, all which real and personal estate, the share of the said Sophia with the avails thereof, came into the hands and possession of defendant as guardian of said Sophia.

The 11th count claims the share of said Sophia in the real and personal estate of her late father, Castine Cornelius Dewitt, late of Demerara, deceased, all which and the avails of the same came into the hands of defendant as guardian of said Sophia.

The 12th count is for the personal services of plaintiff, the said Sophia, for the defendant, and in his family, at his request, for eleven years between 1834 and 1846, the avails of which labor were held by the defendant as guardian of said Sophia, the plaintiff.

The 13 th count is for rents and profits of certain real estate of the plaintiff, said Sophia, received by the defendant at said Demerara, as guardian of said Sophia.

The 14th and 15th counts claim the amount of certain stocks of the plaintiff, said Sophia, which the defendant sold in New York, and certain moneys paid him in 1846, which belonged to her, the avails of all which he received and held to the use of the said Sophia.

In all these counts in the specification, money is claimed as having come into the hands of defendant, or services as rendered for him, for which he was liable to said Sophia, and which he is alleged to have held in trust for, or to the use of, or as guardian for, said Sophia while sole, and the implied promise was to her, and pot to these two plaintiffs, nor was it the money of the plaintiffs that defendant received, but the money of the said Sophia while single.

The authorities all agree that a declaration like this cannot be supported by such evidence, and not only so, but that the declaration is bad in itself without regard to the evidence. Abbot and wife v. Blofield, Cro. Jac. 644, is in point. The whole case as reported is as follows : " Assumpsit, whereas, the defendant received of the plaintiff’s money by the hand of the plaintiff’s wife, &c., that the defendant, in consideration thereof, promised unto them to pay it at such a day, and alleging the breach for non-payment. The defendant pleaded non assumpsit, and found for the plaintiffs ; and moved in arrest of judgment, that this promise is void, being for moneys of the baron and feme, and ad damnum eorum cannot be, for a feme covert cannot have goods with her baron, and although it were objected that it may be for moneys due to the feme, dum sola fuit, or for rent during the coverture, it was held that it shall not be so intended without it hath been shown, wherefore it was adjudged for the defendant.”

Bidgood v. Way & wife, 2 W. Black. 1236. Defendant and wife brought an action in which one count was for money had and received, and after default, the original defendant brought error, and the judgment was reversed and it was held that a husband and wife cannot join in assumpsit without stating the interest of the wife. So a declaration in replevin by J. S. and his wife, without showing any cause for joining the wife, is bad on demurrer, Serres & wife v. Dodd, 2 N. R. 405. And where husband and wife declared jointly with A. upon an agreement to demise lands of the wife to B., and averring the promises to the three, but the evidence showed that the promise was made only to the wife and A. — held a fatal variance, even though the husband had received rent from the tenant subsequent to the agreement, Saunderson v. Griffiths, 5 B. & C. 909; Titus v. Ash, 24 N. H. 319, 338. Where the wife is joined the declaration must distinctly show that the wife is the meritorious cause of action, as it will not be presumed; Brown on Actions at Law, 237; Phillishirk & wife v. Pluckwell, 2 M. & S. 393; Thorne & wife v. Dillingham, 1 Denio 254.

In general, a wife cannot join with her husband in an action upon any contract made during coverture, whether with the wife alone as the party, or with the two jointly. There are some exceptions which are noted, where she may join, and it is said that in all such cases, the declaration must distinctly state the particular cause for making the wife a party to the action, for it will not be presumed that any such cause exists.

The declaration before us is bad, therefore, for not setting forth the manner in which the wife is interested. No promise could be implied to any one but the husband in the- case stated in the declaration, because, though the money had been received of both, or of the wife only during marriage, it would be the husband’s money, and would be received to his use and not to the use of the wife. The several provisions of our statutes authorizing married women to sue and be sued in certain cases, as though they were sole and unmarried, does not affect the rule which is to be applied in other cases not thus provided for. Jordan v. Cummings, 43 N. H. 134.

This defect would be good ground of error, or of a motion in arrest of judgment, or of demurrer, and the motion for a nonsuit on the ground of a variance between the proof and the declaration, was, we think, properly made when the plaintiff had closed his evidence, and as the case stood it was properly allowed, unless the specification is to be taken as a part of the declaration, or as an amendment to the original declaration. A specification only becomes part of the declaration when it states a cause of action consistent with the declaration, and one that can be properly proved under the declaration.

The specification cannot enlarge or modify; alter or amend, the declaration, nor does any delay in making objection to the specification, or the fact that it is not objected to at all, change its effect. Suppose the declaration to be for money had and received, and the plaintiff should specify a contract for the delivery of specific articles, and the defendant pleads the general issue. Defendánt may object to plaintiff’s specification if he chooses and have it rejected, or he may wait until trial, and if his evidence only proves the contract set forth in the specification, he may object that there is a variance between the declaration and the proof, and move a nonsuit upon that ground.

The second ground stated as the foundation for the motion for a non-suit, viz : that other persons should be joined as plaintiffs, is not tenable. Those counts in the specification which seek to charge the defendant as guardian of plaintiff, Sophia, do not allege that he was guardian of any of the other children of Mrs. Dewitt. For aught that appears, somebody else may have been guardian of all the other children, and he is here sought to be charged only for the share of this plaintiff, Sophia, in the property specified.

But in some of the counts, if not in all of those which charge that he is liable as trustee, it is alleged that he held the whole property of Mrs. Dewitt, in trust, for her seven children and heirs, and one-seventh of the same is claimed as the particular part or share to which the plaintiff, Sophia, is entitled. And so of the property owned by two only of the children, plaintiff claims one-half as the amount she is entitléd to receive.

Now, when a contract is made with several persons, whether by parol or otherwise, if their legal interests be joint, they must all, if living, join in an action ex contractu, for the breach of it, I Ch. Pl. 8. But when the legal interest and cause of action of the covenantees are several, each may and should sue separately for the particular damage resulting to him as an individual, although the covenant be in its terms joint, 1 Ch. Pl. 10. Thus if a party covenant with A. and B. to pay them $10 each, or an annuity to each, then, though the covenant may be in terms joint, yet the distinct interest of each, in a separate subject matter, shall attract to each an exclusive right of action in regard to Ms own particular damage, and they cannot maintain a joint action, even though the deed contain stipulations and covenants which are joint. Ch. Pl. supra. If the share of one of several cestui que trusts in a trust fund has been ascertained and set apart, as where it is a moiety, or other aliquot part of the fund, a suit for a breach of trust may be maintained against the trustee, by the person entitled to that share without joining the other cestui que trusts as parties. Hill on Trustees, 519; Perry v. Knott, 5 Beav. 297; Smith v. Snow, 3 Mad. 10; 1 Daniell’s Ch. Pl. and Pr. 265.

Again, it is objected that, as the auditor’s report shows that the money was received by defendant in trust and as guardian for said Sophia, no action at law can be maintained until some settlement of accounts as trustee, or guardian, is shown, and that the remedy must be either in the court of probate, or in equity. Any proceedings in a court of probate are out of the questiofi here. If defendant was ever appointed guardian of this, plaintiff, Sophia, it was in a foreign country, from which both the guardian and ward have removed permanently. Our probate court has no jurisdiction of the matter. There can be no doubt that the most appropriate proceeding would have been a bill in equity, praying for a discovery, and also for an account in all matters where defendant had received property in trust, in any way, for the plaintiff, Sophia, before marriage, whether as guardian, as bailiff, or as receiver, and for all services rendered, and praying for a decree for the payment to the plaintiffs, of all sums thus found due.

A suit in equity is the usual and most effectual remedy for á breach of trust, and in any case the jurisdiction and machinery of these courts is so much better adapted to meet the exigences of every case, by enforcing a restitution of the trust property, and compelling an account against the delinquent parties, that any other remedy is rarely resorted to. Hill on Trustees, 518. Still in all matters of account, the jurisdiction of equity is not exclusive, but is concurrent with that of courts of common law. 1 Story’s Eq. Juris. sec. 442. The question here is not what would have been the best course for these plaintiffs to have pursued, but can this suit for money had and received, be maintained at all ? or must these proceedings be dismissed and the parties turned round to equity to obtain any redress ?

During the continuance of a guardianship, that is, while the relation of guardian and ward continues, no suit at law could be maintained by the ward against the guardian in relation to the trust property, but his remedy must ordinarily be in equity. The same is generally true between trustee and cestui que trust, while that relation continues. So that unless some legal debt has been created between the parties or some engagement, the non-performance of which may be the subject of damages at law, a court of equity is the only tribunal to which the cestui que trust can have recourse for redress. An action at law for money had and received, will not lie against a trustee while the trust is still open, but when a final account has been stated between the parties, and the trust is closed, such an action may be maintained. Hill on Trustees, 42 and 518. So, when the trust is executed so that it becomes cognizable at law and nothing more remains to be done by the trustee, the parties have their remedy at law. Bald. C. C. 422.

In Case v. Roberts, 1 Holt’s N. P. C. 500, it is held, Burrough, J., that if money is paid, into the hands of a trustee for a specific purpose, it cannot be recovered in an action for money had and received, until that specific purpose is shown to be at an end. But if the plaintiff show that the specific purpose has been satisfied, that it has absorbed a certain sum onl}-, and left a balance, such balance (the trust being closed,) becomes a clear and liquidated sum for which an action will lie at law, though while the matter remains in account and is charged with the specific trust, the action for money had and received will not lie. This was a case where the plaintiff had deposited a certain sum in the hands of defendant in trust lor certain specific purposes.

In the case before us it does not appear that the particular relations were between the guardian and ward, though we infer that defendant was a guardian only during the minority of the ward. Certain real estate and personal property descended to the plaintiff, Sophia, from her father or mother, or came to her from-some other source, and she being a minor, was not in law competent to manage and dispose of the same, and the defendant was appointed her guardian, to act for her during her minority; and it appears that he, during the period of her minority, had coiiverted all her real estate, slaves, &c., into money, which he held intrust for her, until she became of age, when his right to hold and control this property ceased, and she, by operation of law, became entitled to recover it from his hands.

No question is here made about the authority of the guardian to dispose of the real estate, or his manner of doing it. By sueing for money had and received, the plaintiffs ratify all his acts and contracts, and claim only the money which he received for the same. The guardian was liable to an action of account at common law by the infant after he comes of age, and the infant while under age may by his next friend call the guardian to account, by a bill in chancery. 2 Kent’s Com. 229.

So in Vermont, where the old action of account was in use, it was held in Field & wife v. Torrey, 7 Vt. 372, that the action of account after the termination of a guardianship, may be sustained in the courts of common law, unless the guardian had accounted in the probate court. This is going farther than we are required to go in the case before us. Here the relation of guardian and ward never existed under our laws. Bui upon the facts stated, defendant may bo treated as the bailiff and receiver of the plaintiff, Sophia, and in those cases the action of account lay at common law by the ward, after arriving of age. Field v. Torrey, supra, and cases cited.

In Massachusetts, Connecticut and New York, the action of account was formerly used, but it has gradually gone out of use and has beep, abolished by law in some of them. It was never used in this State, but assumpsit upon an account stated or annexed to the writ, or upon the common money counts, has been used in its place always here, as it has been recently in the other States mentioned. In Fanning v. Chadwick, 3 Pick. 420, 424, Wilde, J., in speaking of the action of account, says : ‘ ‘But this action is almost obsolete, even in England, and there seems to be no necessity for reviving it here. Justice may be administered in a form more simple and less expensive, by an action of assumpsit, especially since the court is authorized to appoint auditors. Assumpsit now has all the advantages without the disadvantages peculiar to an action of account.”

For particular description of the action of account and the proceedings therein, see 1 Selwyn’s N. P. by Wheaton, 1; also, 1 Story’s Eq. Juris. sec. 442. In the first of these authorities it is said, that by the common law an action of account for the rents and profits may be maintained by the heir after he has attained the age of fourteen years, against the guardian in socagé. So at common law, account will lie against a bailiff or receiver, and in favor of trade and commerce by one merchant against another, and it is said in Green v. Johnson, 3 Gill and Johns. 390, that this action of account is the only action that can be brought against a guardian, as guardian, in a court of law, other than an action on his bond. The moment a ward is emancipated from the authority of his guardian by reaching the age prescribed by law, his cause of action is complete. The relation which subsisted between them ceased to be a subsisting trust; an action of account may be immediately instituted in a court of law, and from that time the act of limitation dates the commencement of its operation.

There are a great variety of trusts differing in their essential particulars from each other. Many trusts are created by parents for the benefit of children or friends, where the property is to be holden by the trustee, for the benefit, and during the life, of the cestui que trust. In such cases the cestui que trust could never have an action at law for. money had and received, but could only enforce the execution of the trust in equity. In the case before us, assuming that the defendant was guardian of said Sophia, during her minority, then the property had first descended to her, and on his appointment, the law took it from her hands and placed it in his, in trust for her, for particular purposes, and for a fixed and definite time, at the expiration of which all his right of control over the property ceased, and it vested again in her by operation of law. Had there been real estate unsold at the time she became of age, she would at once have been entitled to the possession of it, and whatever money he had received for her, all belonged to her, after deducting the proper charges of the guardian.

In its leading features this trust is very nearly like the one in Case v. Roberts, supra, where it was held that an action for money had and received would lie to recover the balance of the money which the plaintiff had entrusted to the defendant for a particular purpose, after that particular object had been accomplished and the. trust ended. In this case, as in many others, the action for money had and received is in the nature of a bill in equity. McCrea v. Purmort, 16 Wend. 460; Stratton v. Rastell, 1 T. R. 370; Lockwood v. Kelsea, 41 N. H. 185.

When the declaration in this case is amended so as to correspond with the specification and proof, which amendment may be allowed on terms, the plaintiffs may maintain their action for money had and received, to recover whatever money remains in defendant’s hands, which, upon a fair settlement, belongs to plaintiffs. The defendant may also amend by pleading the statute of limitations if he desires.

The auditor was correct in hearing the case upon the papers as they came to him. He has no power to allow amendments, or receive new pleas. Still it is common for motions to be made before him for leave to file new pleas, or to amend, so that he may in his report state such facts, or make allowances provisionally, so that if the amendments should be allowed, or the pleas be received, by the court subsequently, his report might meet this new condition of the pleadings.

The auditor’s report is prima facie, evidence of all that it is necessary to prove to authorize the allowance of all such items by the jury as were allowed by him. If a demand was necessary before the plaintiffs could legally recover, it is to be presumed that a demand was proved, otherwise the auditor would not have allowed any items to the plaintiffs. It does not appear from the report that any question was raised before him upon that point, but we think it must be held that the auditor’s report was sufficient prima fcieie evidence to warrant the jury in allowing to plaintiffs all the items which he had allowed.

The claim for services rendered cannot be recovered under this declaration, unless there was some adjusting of the amount due, or some agreement or understanding as to the allowance, so that the amount due for such services could be properly considered as liquidated and settled, and as so much money in the defendant’s hands. Ñor can it be offset to the charge for the plaintiff’s board, unless there was some agreement or understanding, either express or implied, between the parties that there should be such application. If such agreement or understanding be found by the jury, the off-set may be made by finding the defendant’s charge for board of plaintiff, paid to that amount.

Upon the first ground the nonsuit was properly ordered, but das,plaintiff may amend.