Cohen v. Clark

• Decision Date: 20 November 1911
• Citation: 119 P. 775,44 Mont. 151
• Parties: COHEN v. CLARK.
• Court: Montana Supreme Court

119 P. 775

44 Mont. 151

COHEN v. CLARK.

Supreme Court of Montana

November 20, 1911

Appeal from District Court, Silver Bow County; John B. McClernan Judge.

Action by A. B. Cohen against C. W. Clark. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Affirmed.

Geo F Shelton, Peter Breen, M. P. Gilchrist, and Chas. A. Ruggles for appellant.

William Meyer, for respondent.

HOLLOWAY J.

This action was brought to recover $2,730 for work and labor performed and expenses incurred by plaintiff for defendant between January 23, 1901, and October 23, 1902. Plaintiff recovered judgment, and the defendant appealed therefrom and from the order denying him a new trial.

1. The complaint consists of 11 paragraphs, exclusive of the prayer. In paragraph 1 plaintiff alleges that between January 23, 1901, and April 1, 1901, at defendant's special instance and request he performed work and labor for defendant at Helena. Each of the next four paragraphs is similar in terms, except as to the period covered and the place of employment; the several periods of time, beginning with the first, constituting the entire time from January 23, 1901, to October 23, 1902. In paragraph 6 it is alleged that the services were performed by plaintiff for defendant at the agreed price of $150 per month. In paragraph 7 plaintiff alleges that in February and March, 1901, at defendant's special instance and request he incurred expense to the amount of $80. Paragraph 8 is similar, except that the amount expended is stated to be $50, and the time April, 1901. Paragraph 9 is likewise similar to paragraph 7, except that the amount given is $290, and the time August, September, and October, 1902. In paragraph 10 it is alleged that the several sums were expended upon the express promise of defendant to repay the same. Paragraph 11 charges that no part of the sums due for wages or for money expended has been paid, except the sum of $840. The prayer is for the balance with interest. The defendant moved the court to require the plaintiff to separately state and number his cause of action for services, his cause of action for $80, his cause of action for $50, and his cause of action for $290. This motion was denied.

In this court defendant insists that plaintiff has undertaken to state eight separate causes of action in one count, that his claim for services in each of the first five paragraphs of the complaint constitutes a separate cause of action, and that his claim for each separate amount expended likewise constitutes a cause of action; but this position is inconsistent with the position taken in the trial court. In his motion to separate, defendant treated the plaintiff's claim for compensation for all the services mentioned as constituting but a single cause of action, and this appears again in his bill of exceptions, and he cannot be heard to change his position here. He is bound by his theory of the case as disclosed in the trial court. Dempster v. Oregon Short Line Ry. Co., 37 Mont. 335, 96 P. 717; Galvin v. O'Gorman, 40 Mont. 391, 106 P. 887.

Does it appear from the complaint that plaintiff's claim for each separate amount expended constitutes a cause of action, or in fact does it appear that the entire complaint undertakes to state more than one cause of action?

It is an elementary rule of law that: "Where several claims, payable at different times, arise out of the same contract, suit may be brought as each liability accrues; but if suit is not brought until more than one has become due, all must be sued for under one action." 1 Southerland's Code Pleading, Practice & Forms, § 220. Several breaches of a single contract may constitute but one cause of action, and, if the several acts pleaded do make up but a single cause of action, one count in the complaint is sufficient to state them.

Under equally well-recognized rules of pleading, a plaintiff is prohibited from splitting a single cause of action. 1 Ency. Pl. & Pr. 148. But just what constitutes a single cause of action is frequently difficult to determine. At common law the question was easily settled, for the form of the action determined its character. Under the Codes, forms of actions are abolished, and the facts constituting plaintiff's complaint must be stated, and the construction put upon a pleading must now determine whether it states one cause of action only or more than one.

"A 'cause of action' is the right which a party has to institute a judicial proceeding" (Dillon v. Great Northern Ry. Co., 38 Mont. 485, 100 P. 960), and consists of a union of the plaintiff's primary right and an infringement of it by the defendant. 1 Ency. Pl. & Pr., 116.

Manifestly then, if plaintiff pleads several contracts and a breach of each, he states several causes of action; but, if he pleads but a single contract and a breach of it in one or more particulars, he states but a single cause of action, and it is immaterial how the complaint is paragraphed. Nelson v. Henrichsen, 31 Utah, 191, 87 P. 267.

Under our liberal rules of construction it may well be said that this complaint charges one contract for wages and expenses, and a breach by defendant in refusing to pay. The complaint is indefinite, in that it does not state when the value of the services was agreed upon, or when defendant promised to repay the expense money. But the complaint was not attacked upon that ground. A special demurrer was interposed, but it did not point out this defect, and the objection now suggested is deemed waived. Section 6539, Rev. Codes.

But it is not material here to determine whether the complaint seeks to state more than one cause of action. It is sufficient, for the purposes of this appeal, that it does not appear affirmatively from the face of the complaint that it states more than one; for it is a well-recognized rule of law that, to warrant the trial court granting a motion to separate, the complaint must affirmatively show two or more causes of action, each well pleaded. 5 Ency. Pl. & Pr. 335. So far as disclosed by this record, the order of the trial court overruling defendant's motion was fully justified.

2. Some time before trial defendant moved the court to require plaintiff to furnish a bill of particulars. The plaintiff attempted to comply, but failed to satisfy the defendant, who moved that a more particular itemization be required. In response to this motion the court made an alternative order that plaintiff comply or show by affidavit his reason for not doing so. Plaintiff thereupon filed his affidavit setting forth that he had theretofore delivered to defendant the original bills for expenses incurred, and had in his deposition, theretofore given at the instance of defendant stated the items of his account so far as his information enabled him to do so. Upon the trial of the cause, counsel ...