Dorr v. McKinney

Hoar, J.

The demurrer to the count for money jsad and received, for want of a bill of particulars, cannot be sustained, because reference to the other count may be taken to furnish a sufficient bill of particulars. But this is not very material; as it is apparent that, upon the evidence stated in the bill of exceptions, there was no case proved which xvould sustain a verdict on this count. At the date of the writ, the defendant bad not received in money or its equivalent so much as he had expended in the purchase of the cotton; and until his expenses were reimbursed, he would not be required, on any view of the transaction, to pay any part of the proceeds to the plaintiff It is true that the case was not put to the jury upon the claim made by this count; and the plaintiff’s counsel have not attempted to support the verdict upon it. It will therefore follow that, as the court instructed the jury that they should find for the plaintiff if certain facts were proved, if the other parts of the declaration were defective upon demurrer, the verdict would have no sufficient count to sustain it, and the exceptions must be sustained.

On examining the special count in the original declaration, it is difficult to ascertain what cause of action the plaintiff intended to set forth in it; and none is stated with legal precision and certainty. The declaration is in contract, and there should be a statement of the contract relied on, and of the breach of it. The count alleges that the plaintiff and defendant purchased on their joint account the quantity of cotton named, and that the plaintiff was bound and ready and offered to pay for his half of it; that the defendant took possession of it, and refuses tc deliver it to the plaintiff, or to account for it, though requested, There is no allegation of any agreement to deliver one half of the cotton purchased on joint account; nor would the law imply any such promise by one joint owner of a chattel to the other. There is no averment of any promise to account, and nothing to show that there was anything from which a duty to account had arisen before action brought. The possession of one joint owner is the possession of the other, unless there has been some tortious exclusion of the joint tenant. The remaining averments are that the cotton was worth more than it cost, and ought to have been sold so as to yield large profits to the plaintiff, but that the defendant refuses to account for such profits or pay the plaintiff anything thereon. But there is nc allegation that .the defendant agreed to sell it at any time, o-within a reasonable time, or why it ought to have been sold, o that he had sold it.

The averments in the third count, filed as an amendment, do ’ ’' not help the matter. It states a purchase of the cotton on joint account; to be paid for, one half by each party, and that the plaintiff was ready and offered to pay his half, and to take one half of the cotton ; that the cotton was worth a higher sum than it cost, but the defendant, regardless of the joint contract, refused to allow the plaintiff to have any benefit of the same, or any part of said cotton, but sold it, and received the proceeds and all profits arising from the sale, one half of which belong to the plaintiff, which the defendant refuses to pay him on request. This count, like the first, alleges a purchase on joint account; but it proceeds to aver that the defendant has sold the cotton for a sum named, and received payment, and refused to pay the plaintiff his share on request. This is a statement, rather by inference than directly, that the defendant promised to pay him one half of the profits on the cotton sold; but supposing it to be sufficient in form, the same objection at once presents itself which was found to the count for money had and received. The evidence did not support it, and the instructions given by the judge had no relation to it. Indeed the plaintiff has argued and stated on his brief that the cause of action on which h relies was the refusal on the part of the defendant to fulfil a contract for a joint purchase. But he has not declared on any breach of such a contract. On the contrary, he expressly avers in both the special counts, and by reference in the general count, that the purchase on joint account was made as agreed.

It thus becomes unnecessary to consider in detail the various exceptions which are brought before us; because there was no evidence which supported the second and third counts, and all the rulings were, as to them, immaterial; while the remain Jig count was bad on demurrer. There was a mistrial, and the verdict must be set aside, and a new trial granted.