Bulkley v. Andrews

Foster, J.

The questions arising on this motion in error, and also for a new trial, are more numerous than difficult.

The first count in the declaration is a count in general indebitatus assumpsit for money lent, money paid, money had and received, goods' sold, Ac., Ac. The first error assigned in the motion in error is, that the first three causes of action in this count are in favor of the plaintiff in his capacity and riglit as executor, and the last two causes of action in his own right. This, no doubt, would be a bad ■ count if the fact were so, but it is not. The plaintiff describes himself in the outset as executor, and adds the words “ as executor” to every repetition of the term “plaintiff,” as often as it occurs throughout the count, including the ad dam-num clause. We are at a loss to imagine how he could have made his claims as executor more explicitly or more exclusively. There is manifestly no error on this point.

The second, third, and fourth causes of.error may be ’considered together. The second, third and fourth counts of the declaration are said to be for causes of action accruing to the plaintiff in his own right, and so cannot be joined with the first count. No authority need be quoted to show that claims in one’s own right cannot be joined with claims as executor. Such misjoinder is bad on demurrer, on motion in arrest of judgment, or on error. In this declaration, however, we discover no such misjoinder. The special counts, it is true, do not add the words “ as executor” after the word “ plaintiff” ; but two at least of those counts allude to the property sued for as belonging to the plaintiff as executor, or as needed by him in the settlement of the estate of which he was executor. Then, as we have already stated, the plaintiff describes himself in the commencement of the declaration as executor. There can be no more necessity for repeating the words “ as executor,” in each count, in order to identify the character in which the plaintiff sues, than there is for repeating the name of the plaintiff in order to identify his person. ■' The misjoinder complained of has not been made, and the error assigned has therefore no existence.

Of the remaining error assigned, that the second and third •counts of the declaration are insufficient in the law, it is enough to' say that if the defendant is right in his claim, (we think he is not,) it would be no good cause for reversing the judgment below. That judgment would be upheld by the remaining counts in the declaration, which are admitted to be good. The granting of a new trial in this case, (ante, page 70,) made it necessary for the plaintiff, unless he abandoned his claim, either to withdraw his case and com? menee a new suit, or procure an amendment of his declaration. He moved for leave to amend, and the amendment was allowed, as we think, properly. The question was within the jurisdiction of the court, and the amendment changed neither the form nor the ground of the action. The purpose- of our statute of amendments is. a beneficial one, and it has continually been more and more liberally expounded. Nash v. Adams, 24 Conn., 33; Stuart v. Corning, 32 id., 105. Besides, the allowance of this motion was within the discretionary power of the court, and is not the subject of error. Merriam v. Langdon, 10 Conn., 460; Husted v. Greenwich, 11 id., 383. And as to the time when amendments may be made, it is a matter of practice, and rests in the discretion of the court. McAllister v. Clark, 33 Conn., 253.

The objection to the testimony of the plaintiff, on the ground of variance between the contract proved by his testimony and the contract as set forth in either count of the declaration, was properly overruled. This testimony perhaps fell short of proving fully' the contract as set forth in either of the special counts, but it tended to prove it, and was admissible in support of those counts. ■ There was other evidence in the case. It was the prerogative of the jury to pass upon the weight of the evidence, and they were instructed that the plaintiff must prove every allegation in the special counts to entitle him to recover.

The action of the court of probate in settling the account of the plaintiff as executor, and in the allowance of claimá and charges against the estate of the testatrix, could not be attacked collaterally in the court below. The ruling of the court, that the decree of probate was conclusive unless fraud was shown, gives the defendant no valid ground of complaint. The court, in charging the jury, discriminated between the first or common count and the amended counts; instructing them that if they found that the defendant sold any of the goods, the plaintiff was entitled to recover on the first count what they sold for, with interest from the time they were demanded. As there was evidence applicable to each of tlie amended counts, the request of the defendant that the jury-should declare on which of the special counts they found, if they found for the plaintiff, was properly disregarded.

The judgment of the court below is therefore affirmed, and a new trial is not advised.

In this opinion the other judges concurred.