Carpenter v. Gookin

• Decision Date: 01 February 1829
• Citation: 2 Vt. 495
• Parties: BILLINGS CARPENTER v. HIRAM N. GOOKIN
• Court: Vermont Supreme Court

2 Vt. 495

BILLINGS CARPENTER v. HIRAM N. GOOKIN

Supreme Court of Vermont, Windsor

February, 1829

This action was brought originally before a justice of the peace and appealed to the county court. The writ before the justice contained a declaration, alleging that in consideration that the plaintiff would let to the defendant a horse to ride ten miles, the defendant promised not to ride him over ten miles to ride him moderately, and to pay one dollar for the use of him; and averring, as a breach, that the defendant rode the horse over ten miles, rode him immoderately and injured him and had not paid the one dollar. The defendant pleaded infancy, and several other pleas not necessary to mention. Judgement was rendered by the justice, and an appeal taken. In the county court, the plaintiff did not file a new declaration, under the rule of that court, which allows a new declaration to be filed within a certain time, and on neglect therefor confines the party to the declaration before the justice. The plaintiff relied upon the declaration set up before the justice, and the defendant pleaded infancy and non assumpsit to it. The plaintiff after this moved to amend his declaration by adding a count in trover for the conversion of the horse; and the court permitted him to do it. He subsequently moved further to amend by striking out the old declaration; and the court decided he might do this also. The defendant then, waiving all former pleas, pleaded not guilty and also that at the time of the alleged conversion, he was an infant, under twenty one years of age. The plaintiff joined issue on the plea of not guilty, and demurred to the plea of infancy. A trial was had, and a judgment rendered against the defendant. The defendant excepted to the decisions of the court, and removed the cause to the Supreme Court.

Reversed.

For the defendant it was contended, 1. That the original action being assumpsit, trover could not be joined with it.--2 Chit. Pl. 107-148.--1 Aik. Rep. 80. 2. That the effect of both amendments is to substitute trover for assumpsit which the court was not authorized to do.--1 Sw Dig. 639.--11 Mass. 242. 3. That the facts in the case did not show a conversion, but only a breach of promise, especially if infancy cannot be pleaded. 4. That infancy was a valid defence on the facts stated, and is not affected by the form of the action.--Jennings v. Rundall, 8 Term Rep. 355.

Argument for the plaintiff.--Amendments are allowable both by statute and common law. Our statute is very broad, and authorizes the Court to permit the parties to amend any defect or want of form at their discretion. As to its being after plea pleaded it is answered that the statute expressly says, the Court may, at any time, order an amendment, & c. And at common law, we know it is done after judgment, and even after a writ of error is allowed and the record removed, either by the court below, or in the court of errors. It will not be denied that the old and new declarations are for the same cause of action; and, indeed, this will appear from a comparison of the two counts. It is contended, that the amendments were properly allowed, the two causes of action might be properly joined in the same declaration. It is common to join a count in trover with a count in case for a tort; and if so, are both within the pale of this form of action. In all cases where counts may be joined, one may be added to the other by way of amendment. The count first filed in this case was properly an action on the case for a tort. It, indeed, states the contract as it must do in order to show wherein the tort consisted. It states a letting of the horse from Weathersfield to Cavendish, and alleges that in going that distance, defendant was to use the horse tenderly and drive him reasonably. It then alleges that the defendant drove the horse unreasonably, and that he drove him from Cavendish to Mountholly, further than he had a right to do by the terms of hiring. Now, was it a tortious act to drive the horse unreasonably, and to drive him ten miles further than he had a right to do? It was truly a breach of the contract, both express and implied; but was it on that account the less tortious? It was, therefore, clearly an action on the case for a tort. The question is not whether this was the proper mode of redress for the injury, but whether the facts stated do not develope such a tortious line of conduct, and such a cause of action in case, as that trover may properly be joined with it in the same declaration. Counts for deceit and trover are often joined in the same declaration. In Jennings v. Rundall, 8 T. R. 335, the two first counts were in case, stating the contract of hiring, and alleged that the defendant used the horse severely, and strained and lamed him: to these was joined a count in trover. Infancy was pleaded to the two first counts, and the court judged this to be a mere...