Bowdoin v. Coleman , 6 Duer 182 ( 1856 )

By the Court,^* Hoffman, J.

The case, in our opinion, turns upon the decision of three questions.

1. Whether the right of Ward and Price to sue upon the undertaking, passed to the plaintiffs in this action, by the assignment of March 21,1855.

2. Whether the complaint is sufficient, and whether the alleged defect can now be taken advantage of.

3. Whether Ward and Price could have sued upon the undertaking separately. If they could not, of course the plaintiffs cannot. And this question also involves that of the effect of the action by John H. and William H. Harbeck.

1. It seems to us clear that Ward and Price, having in fact a separate judgment for a different sum, with an award of execution in their separate favor, could assign and have assigned this right to the plaintiffs. As against Keyser, the benefit of the judgment passed to them, with every right to recover the demand from him by execution or supplementary proceedings. (Code, § 274).

We think also that the assignment is sufficient to transfer any right which Ward and Price had upon the undertaking. That was for the payment of “ such sum as may for any cause be recovered against the plaintiff.” The sum of $395 30 is adjudged to be paid to these defendants by the plaintiff. The assignment transfers that debt, which the sureties have covenanted to pay. It is a sum of money claimed, by means of the judgment assigned, though claimed in form upon the undertaking. When the debt is assigned, the security incidental to it, and given in contemplation of its arising, must follow the debt. The principle is founded in the cases holding that the assignment of a debt secured by a mortgage passes the mortgage, as well as in other authorities establishing a similar doctrine. (10 Smedes & Marshall, 631; Curtis v. Tyler, 9 Paige, 432).

We conclude, that if the undertaking had been executed to Ward and Price alone, the assignment to the plaintiffs of the judgment would have transferred the right to it.

2. The second question relates to the sufficiency of the complaint. It is objected that there is no averment of the plaintiff’s title to the undertaking, or of their right to bring the action ; no averment or proof of a consideration for the undertaking; no averment of a delivery to the assignors; and no averment or facts stated, to show that the action in which the undertaking was given was within the statute.

The decision of the Common Pleas in the case of Slack a. Heath, (1 Abbott's Pr. R., 334), which has been cited, is almost precisely in point, and would settle these questions against the defendants. Mr. Justice Woodruff however dissented. Ho proof had been given at the trial, but the case came up on a motion to dismiss the complaint as not showing a good cause of action, which motion had been denied, and the jury directed to find for the plaintiff. The learned judge who dissented, stated the question to be,—“ Whether the judge was warranted in charging the jury, that upon the admitted facts stated in the complaint, and without even the production of the alleged undertaking, the plaintiff was entitled to recover.” “ It seems to me plain that unless there is enough to show on the complaint, that the undertaking was given and received under section 211 of the Code, the plaintiff has failed to show a cause of action.” The defect was in not averring that the bond was taken in and for the prosecution of an action of replevin; now claim and delivery.

Without expressing an opinion upon the point as it was nakedly presented in Slack a. Heath, this case presents facts which may authorize a decision consistently with the dissenting opinion. The undertaking was produced at the trial by the plaintiffs. And here a section of the Code not noticed in the argument is of some moment. Section 423 directs that undertakings in cases of claim and delivery shall be delivered by the sheriff to the parties respectively for whose benefit they are taken. A delivery enjoined by law may be inferred. This meets one of the defendant’s points.

Again, it was admitted on the trial, that the action in which the undertaking was given, was the action of Keyser a. Harbeck, and the pleadings, proceedings and judgment in that action are in evidence here, that that was an action of claim and delivery. The case then as made upon the evidence, combined with the complaint, answers the objection in point of fact, assuming it to have been a valid one upon demurrer. Section 173 of the Code appears then to apply and to sanction an amendment, so as to conform the pleadings to the proofs. We cannot doubt that if the plaintiff had applied at the trial to amend his complaint by inserting an allegation that the undertaking was given in an action of claim and delivery commenced under section 206 of the Code, and was given pursuant to section 209, the judge would have been bound to permit it. The question is whether on appeal, the general term may not order it to be done or treat it as done.

Section 173 of the Code provides that the court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceeding, by, &c., or, when the amendment does not substantially change the claim or defence, by conforming the pleading or proceeding to the facts proved. The authorities we have referred to are as follows.

In Rayner v. Clark, (7 Barb., 582), in the fifth district, the action was upon a bond given upon the arrest of Clark upon attachment for contempt. The complaint was defective in not connecting the plaintiff with the attachment proceedings, and showing how and to what extent he was aggrieved by the acts of the defendant. A judgment had" been ordered upon a frivolous answer and an assessment of damages. Judgment was entered upon this and an appeal taken. The court considered the complaint defective ; that the' consequence would be that the plaintiff must be placed in the same situation as he was in when the answer was stricken out. He could then have got leave to amend, and there was no good objection to granting the same relief then which he could have had on special motion. Such relief was granted in the order.

In Clark v. Daly, (20 Barb., 67), section 173 was referred to. It was observed that whether an amendment should be ordered at general term and without formal notice of motion for that purpose, or on notice as a special motion, was a question of practice not entirely settled. The remarks of Justice Duer in Gunter v. Gatlin (11N. Y. Leg. Obs., 209) were quoted. And the court conclude,—“ that where the amendment is only to conform the pleadings to the facts specifically found by the court, and where the record furnishes the only ground for or against the amendment, a motion is quite unnecessary.” And an order was made affirming the judgment, with costs, with liberty to the plaintiff to amend his complaint. The amended count should set out the original contract as in the first count, aver that an extension of the time of performance until October 1, 1853, had been agreed upon, and a readiness to fulfil on that day.

In Bate v. Graham (1 Kern., 237) the court say,—“ If the complaint had been demurred to, for not stating ’facts sufficient to constitute a cause of action, we do not see how it could have been sustained.” The defect was that a creditor brought an action to set aside an alleged fraudulent sale of personal property by a testator, without averring that the executor refused to impeach it, or had supported'it. The answer of the executor supplied the defect, insisting that the sale ought not to be set aside. And the Court of Appeals held, that the defect should be deemed supplied under section 173, on the ground that the court below should have permitted or ordered an amendment.

Section 148 of the Code indeed permits an objection that the complaint does not state facts sufficient to constitute a cause of action, to be taken in some other way, and at some other stage of the cause than upon demurrer or answer. The omission so to take it, is not a waiver. It might have been taken formerly by motion in arrest of judgment.^* This proceeding is not now allowable in practice. But we will assume that it is an objection which may be taken on appeal from a judgment. (7 Barb., 582).

In Brown v. Cole (1 E. D. Smith's C. P. R., 265) the Court of Common Pleas express the opinion that the general term, as a mere appellate tribunal, ought not to order amendments of this nature, and this in a case in which it thought that an application at special term, after a referee’s report, would have been successful. This we understand is the general rule adopted in that court.

We may also notice section 172, by which after the decision upon a demurrer either at general or special term, the court may allow the party to plead in upon terms. The general tenor of the Code undoubtedly is, to consider tapón am arppeal the general term as simply a revisory tribunal, to act upon the record or case as it finds it, and to affirm, reverse or modify the judgment or order in the respect mentioned in the notice of appeal, and as to any or all the parties. It possesses also the additional power of relieving any intermediate order involving the merits, and affecting the judgment.

But the decision of the Court of Appeals seems to warrant this court, as it would that court, to consider the amendment suggested, as in fact made, or to disregard it. If the counsel of the plaintiff considers himself safe under that authority, he may take an. affirmation of the judgment at once. We do not consider ourselves as warranted in reversing it upon the ground suggested. If the counsel should deem it prudent to apply for an amendment at special term, he can do so, and have the affirmation of the judgment here suspended.

3. The next question is whether the plaintiffs can sue upon this undertaking without making the other obligees or promisees parties. The leading cases upon this point, irrespective of the Code, are as follows. Engs v. Donnithorne, (2 Burr., 1190;) Sorsbie v. Park, (12 Mees & W, 146;) Knightly v. Watson, (3 Exch. R., 716;) (Shepard’s Touchstone, by Preston, 166;) Ehle v. Purdey, (6 Wend., 629 ;) Dean v. Hitchcock, (2 Comst., 388.) See also the authorities cited in Platt on Covenants, 123, et seq.

Lord Mansfield in the case from Burrows, says, “ The language of severalty or joinder, and not the interest is the test of the quality of the covenant quoad covenantors.” And the same rule governs as to covenantees. It has been held in a series of cases, says Mr. Parsons, that the interest which the covenantees take by the covenant, quite irrespective of the words of severalty or joinder, is the decisive test. But the correct rule, as stated by Mr. Preston, is that by express words indicative of the intention, a covenant may be joint or joint and several to or with the covenantors or covenantees, notwithstanding the interests are several. Where the words are ambiguous, they will be construed according to the interest.

In Knightly v. Watson, (3 Exch. R., 716), Pollock, Baron, said, “ The rule is, that a covenant cannot be treated as joint or several at the option of the covenantee. If a covenant be so constructed as to be ambiguous, that is, so as to serve either the one view or the other, then it will be joint if the interest be joint, and it will be several if the interest be several. On the other hand, if it be in its terms unmistakably joint, then although the interest be several, all the parties must be joined in the action. So if the covenant be made clearly several, the action must be several, although the interest be joint. It is a question of construction. See also, Ehle v. Purdy, (6 Wend., 629).

In Pearce v. Hitchcock, (2 Comst., 388,) upon an attachment under the absconding debtor act, the defendant executed to the plaintiffs and to Peter V. Lane, William B. Guild, and Ziba N. Kitchen, (three other creditors who had come in under the attachment,) a bond in double the amount sworn to by all the attaching creditors, and conditioned to pay to each of the attaching creditors the amount justly due to him from said Condit and Peck. The declaration set forth the indebtedness of these parties to the plaintiffs, and concluded with the usual averments of the forfeiture of the bond, &c. On demurrer for non-joinder of all the attaching creditors, the Common Pleas on the authority of Arnold v. Talmadge, (19 Wend., 527,) held the objection fatal. On appeal, Chief Justice Jewett said, that at the common law the objection would be decisive. He states that the correct rule was laid down by Gibbs, C. J., in James v. Emery, (5 Price, 533,) with the qualification stated by Mr. Preston. “ That rule is, that a covenant will be construed to be joint or several according to the interest of the parties appearing upon the face of the deed, if the words are capable of that construction/ not that it will be construed to be several by reason of several interests, if it be expressly joint. I think that is the true distinction. In this case although we -can see from the recitals in the bond that the obligees had separate and distinct interests, yet it is expressly joint, and the words of it will not admit it to be construed as a several bond. Therefore by the rule of the common law, the action could not be sustained, if all are living, in the names of any member of the obligees less than all.” He then proceeds to determine that the statute (2 Rev. Stats., 12, § 57,) created an exception to the rule, and enabled the plaintiffs to sue for their separate interests. Arnold v. Talmadge is overruled.

Mr. Justice Bronson dissented as to this latter point, but repeated the rule as stated by the presiding judge with equal precision. The covenant will be construed to be joint or several, according to the interest of the parties appearing on the face of the deed, if the words are capable of that construction; but it cannot be construed to be several by reason of several interests, if it be expressly joint.”

I assume, therefore, that upon demurrer to this complaint, the objection would be good. The whole frame of the undertalcing is a responsibility to the five defendants named in the title, without a word to import a separate interest; and to treat it as on its face a disjunctive liability, as 'facts might after-wards occur, would be contrary to sound rules of pleading.

But the objection is one of a non-joinder of proper parties, and admitting it to have been ground of arrest of judgment before the Code, yet sections 144,147,148 apply, and settle that it is too late now to take the objection, as it does not go either to the jurisdiction, or to show the entire want of a cause of action.

The remaining point on the part of the defendant, is the effect of the judgment in favor of the Harbecks upon the undertaking, and payment of the amount recovered by them. This is set up, in the answer of the defendant Coleman, as a bar.

If plead as a former judgment, the answer to its availability is, that it is not between the same parties, nor in point of fact for the same cause of action. That cause of action was separated by the judgment of the general term, and made distinct for one sum in favor óf the Harbecks, and for another in favor of the present plaintiff's.

Nor can it be set up as a payment or satisfaction, for the same reason. Another reply is, that had the action been brought in the names of all the promisees in the undertaking, and upon answer, or evidence, all the facts now developed had been made out, the judgment could have been in favor of some of the plaintiffs, namely, those now suing, and against the others. (Code, § 274). The result which would then have been reached is precisely the same as is attained in the present suit.

We consider that the judgment must be affirmed, with costs on the appeal, but the plaintiffs may apply as before suggested, if so advised.

*

* Oakley, Ch. J., and Hoffman and Slosson, J. J.

* Compare Snell a. Snell, Ante, 426.