Rutan v. Hinchman ( 1860 )

The opinion of the court was delivered by

Vredenburgh, J.

The state of demand contains two counts — the first, for the balance of one hundred dollars due on a horse sold by ITinchman and Hopper to Rutan ; the second count states that Hinchman and Hopper sold Rutan a horse, of the value of two hundred dollars, for one hundred dollars in cash and a lot of land in Paterson, on - street, of the value of one hundred dollars; that Rutan paid the one hundred dollars, but refused to convey the lot, wherefore the plaintiff’s demand, the balance of the value of the horse, to wit, one hundred dollars. The first count is clearly in debt, and the second as clearly in assumpsit for unliquidated damages. The measure of the plaintiff’s right of recovery on the second count is not the value of the horse, but the value of the lot. The defendant could not set up by way of mitigation that the horse was worth only one hundred and ten dollars, or the plaintiff set up that he was worth five hundred. The plaintiff was entitled to recover the damages for not conveying the lot, whether that was five dollars or five hundred. It was suggested, on the argument, that the defendants having refused to convey the lot, the plaintiff might proceed as upon a simple sale of the horse, and recover its full value. This might have been so, perhaps, if the plaintiff had confined hitnself to his first count, and claimed only in that light; but the second count proceeds upon the affirmance of the contract, and seeks to recover damages for its breach, which was the non-conveyance of the lot.

The question for us is, in a suit commenced in debt before a justice of the peace, where the state of demand contains two counts, the one in debt, and the other for a distinct cause of action in assumpsit for unliquidated damages and a general judgment for the plaintiff, will this court, upon certiorari, reverse for error?

In the first place, it is clearly a misjoinder of actions, which has always been esteemed and treated as erroneous. 1 Ch. Pl. 205-6 ; 16 Johns. R. 146.

In principle it is like a demand on a book account where there are illegal charges and a general judgment, so that it cannot be told whether the illegal charges go to make up the judgment or not, in which case this court have always reversed upon certiorari. So here one of the items is upon a demand upon which no judgment in debt could be given. It was suggested that the judgment was, in fact, for the value of the horse. But the demand is for damages iu not conveying the lot; or, in other words, the plaintiff demands the value of the lot and recovers the value of the horse.

It is true that, when the act (Nix. Dig. 402, § 76,) was first passed, and the style of action was in debt, and only one count in the state of demand in some other form of action, the courts refused to reverse for that cause, considering it to come within the purview of that act, several instances of which will be found in Pennington’s Reports. Somers v. Scull, Penn. 1046-7. But the question came up for review in the case of Sayres v. Springfield, 3 Halst. 166, and the judgment reversed for this specific cause. Several other'cases were decided upon the same principle about the same time. And such has been, I believe, the uniform practice ever since.

Affirmed, 2 Vr. 496.