Clark v. Boyd

• Decision Date: 31 January 1921
• Citation: 112 A. 345
• Parties: CLARK v. BOYD et al.
• Court: Maine Supreme Court

112 A. 345

CLARK

v. BOYD et al.

Supreme Judicial Court of Maine.

Jan. 31, 1921.

Exceptions from Supreme Judicial Court, Aroostook County, at Law.

Action by Michael M. Clark against Byron Boyd and others, resulting in overruling of defendants' demurrer, and defendants except. Exceptions overruled, and final judgment for plaintiff ordered.

Argued before CORNISH, C. J., and SPEAR, PHILBROOK, DUNN, WILSON, and DEASY, JJ.

Powers & Guild, of Ft. Fairfield, and Cook, Hutchinson & Pierce, of Portland, for plaintiff.

Strout & Strout, of Portland, for defendant U. S. Fidelity & Guaranty Co.

Burleigh Martin, of Augusta, for defendant Boyd.

WILSON, J. An action of debt on a bond. The declaration contains two counts. The first count is in the form usually found in the books and held sufficient by the court in York v. Stewart, 103 Me. 474, 70 Atl. 207, Colton v. Stanwood, 68 Me. 482, and Inhabitants of Boothbay Harbor v. Marson, 112 Me. 505, 92 Atl. 623, being based simply on the penal part. The second count begins with the customary "Also for that," without stating the nature of the action, and, after declaring on the penal part, sets forth the breach of the conditions that are relied upon.

Either of the courses followed in the respective counts was open to the plaintiff. Inhabitants of Boothbay Harbor v. Marson, supra. There can be no reason why a count in each form may not be joined in the same action.

One of the defendants filed a special demurrer at the second term without requesting the right to plead over, which was properly joined, and overruled by the presiding justice. The case is now before this court on exceptions to this ruling.

The sole grounds on which the defendant relies are that both counts are defective because they do not contain the words, "whereby an action has accrued to the plaintiff," or "per quod actio accrevit," as the ancient form runs, or any allegation equivaalent thereto, and that the second count is also defective because it does not begin with the phrase, "In the plea of debt."

We think that each count is sufficient both in form and substance and is in accord with the well-established forms and rules of pleading recognized in this state. It is not necessary to add an allegation or the equivalent of the ancient per quod actio accrevit in an action of debt where the debt is acknowledged in or arises from the instrument or obligation declared on as a bond or a judgment. In such cases it is only necessary, after setting forth the obligation, to allege a nonperformance and concluded with a breach ad damnum. Chitty on Pleading (16th Ed.) vol. 1, p. 375; Payne v. Smith, 12 N. H. 34. For common form of declaration on a bond, see Oliver's Precedents (5th Ed.) p. 249, and York v. Stewart, supra.

Where, however, the debt is the result of a failure to fulfill a promise or an agreement, and arises, as it were, dehors the Instrument or obligation, as in the case of an action of debt on a promissory note, or for rent under a lease, or even for goods sold and delivered where the price has become due and payable, the allegation "whereby an action has accrued" appears to be essential, or at least commonly used. See forms in Oliver's Precedents (5th Ed.) 245, 246; Chitty on Pleading, supra. No doubt this allegation is many times used out of excessive caution where unnecessary, and is a mere surplusage, and forms may be found in the books which do not square with the above distinction laid down by Chitty; but, if it be unnecessary when the penal part of a bond alone is declared on, we see no good reason why it should be essential because the condition and breach are also set out.

As to the second point raised by the demurrer, that the form of action is not stated in the second count: Formerly declarations or statements of the cause of action were not attached to the writ when served, but were stated orally and later in writing and filed in court after the writ was returned. The writ itself then set forth in general terms the nature of the action the defendant was summoned to meet.

The declaration according to the forms then in use began with a recital of the writ and the nature of the action described therein, and in general was an exposition of the writ itself with addition of time, place, and other circumstances. Tidd's Practice (Fnrrand's Ed.) vol. 1, p. 361. Also see forms in Stephens on Pleading, pp. 65-70. But, as the well-known author on practice in the Courts of the King's Bench says:

"This practice being productive of great prolixity, a rule of court was made that, declarations in action on the case and general statutes other than debt repeat not the original writ, but only the nature of the action; thus 'a plea of trespass upon the case.'" Tidd's Practice, vol. 1, p. 377; Stephens' Pleading (3d Am. Ed.) p. 367.

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