Cook v. Morris

• Decision Date: 28 May 1895
• Citation: 33 A. 994,66 Conn. 196
• Court: Connecticut Supreme Court
• Parties: COOK v. MORRIS.

33 A. 994

66 Conn. 196

COOK

v. MORRIS.

Supreme Court of Errors of Connecticut.

May 28, 1895.

Appeal from superior court, New Haven county; Ralph Wheeler, Judge.

Action by J. Hazelton Cook, Jr., against Luzon B. Morris, executor, on a claim against the estate of defendant's testator for services rendered testator in tutoring a law student-Prom a judgment of nonsuit, plaintiff appeals. Reversed.

Rufus S. Pickett and Daniel Davenport, for appellant.

John W. Ailing and James H. Webb, for appellee.

HAMERSLEY, J. This is an appeal from the judgment of the superior court, as in case of nonsuit, rendered during a trial to the jury, upon the motion of the defendant, and against the will of the plaintiff, after the plaintiff had adduced his evidence and rested his case. As the record does not disclose the particular reason which induced the court below to grant the motion, we will consider such grounds of nonsuit as apparently might have been the basis of the court's action:

1. The claim made by the defendant that there is no evidence to go to the jury in support of the facts put in issue by the complaint and answer, in connection with the claim that such facts, if proved, are legally insufficient to support any cause of action. The complaint alleges in the first count that one Daniel Hand died December 17, 1891, leaving a will, by which the defendant was appointed his executor; that the will was duly proved February 8, 1892, and the defendant thereupon duly qualified as such executor, but that said will contained no provision for the payment of the sum of $25,000, or any part thereof, to the plaintiff; that said Hand did not in his lifetime pay said sum, nor any part thereof, to the plaintiff; that the plaintiff duly presented to said executor his claim against the estate to the payment of said sum of $25,000; and that the executor notified the plaintiff that he disallowed the claim, and refused to pay it. These allegations were admitted by the answer. The other allegations are in substance as follows: (1) In January, 1876, said Daniel Hand agreed with the plaintiff that, if he "would tutor and make arrangements so as to graduate" one Hollis T. Walker from the Yale Law School, he (the said Hand), in consideration of said services resulting in the graduation of said Walker in the summer of 1876, "would give said plaintiff the sum of $25,000." (2) The plaintiff entered into said agreement, and did tutor and make arrangements for graduating said Walker. (3) About July 1, 1876, said Walker graduated from said law school. (4) "Soon thereafter said plaintiff called upon said Daniel Hand for a settlement for services rendered as per said contract, and said Daniel Hand told said plaintiff that he had placed in his will the amount of $25,000, payable to said plaintiff upon his (Daniel Hand's) death." (5) The plaintiff believing said statement to be true, and in consequence of the fact that said Hand was then about 75 years old, "thereupon agreed with said Daniel Hand to accept as a settlement the terms as above stated." The second count contains the same allegations stated more in detail, and further alleges a promise by the plaintiff to forbear prosecuting his claim during Hand's lifetime, and actual forbearance, as induced by the promise of Hand to pay by will. The answer directly traversed each of these allegations, and these allegations and denials constituted the issues put to the jury for trial.

The burden resting on the plaintiff to make out a prima facie case, within the meaning of our statute authorizing a nonsuit, was satisfied, If his testimony, assuming it to be true, and drawing from it every favorable inference of fact that might reasonably be drawn, contained any substantial evidence supporting the affirmative of the issues so put to the jury for trial. We have carefully examined the testimony reported in the record, and are satisfied that there was evidence (if the testimony could be treated as true) to go to the jury in support of the facts so put in issue. Indeed, we do not see how there can be any serious doubt of this when the testimony is considered, independently of its apparent untruthfulness, and of the questions of pleading suggested by the loose construction of the complaint The defendant, however, relies in support of the nonsuit upon the claim that the facts alleged, if proved, are legally insufficient to support a judgment; and the attempt to demonstrate this claim pervades his whole argument His claim is that "the nonsuit was granted because the evidence showed no cause of action that could be enforced by a court, because whatever cause of action, if any, was testified to, was without any legal consideration to support it"; and he further maintains that the want of consideration appears in the complaint, and that the insufficiency of the complaint is ground for nonsuit.

During a trial to the jury, the legal sufficiency of the material facts put in issue by the allegations of the complaint and denials of the answer cannot be questioned; and by "material facts," in this connection, is meant facts constituting a part of the plaintiff's case as he presents it. The legal sufficiency of such facts must be settled by demurrer before the issues are joined and put to the jury, or else, after the verdict is returned, by a motion in arrest of judgment or by a writ of error. Such rule has been considered necessary to the orderly conduct of an action, and is firmly established by former decisions of this court. Canterbury v. Bennett, 22 Conn. 623; Adams v. Way, 32 Conn. 167. This rule has not been changed by the practice act. The elimination of all questions as to the legal sufficiency of the facts alleged on which issues are actually joined, from the trial to the jury of the issues so joined, if not more essential, is certainly as essential to the orderly conduct of an action under the new system of pleading as under the old. Trowbridge v. True, 52 Conn. 197; Merwin v. Richardson, Id. 233. In Powers v. Mulvey, 51 Conn. 433, it was held that, under the practice act, the denial of all the facts alleged in a pleading is an admission that such pleading is sufficient in law, and the court says that a party cannot have "the benefit of both a traverse and demurrer to the same facts at the same time." Todd v. Munson, 53 Conn. 591, 4 Atl. 99, explains that it does not follow from Powers v. Mulvey that a plaintiff is necessarily entitled to a judgment because he has proved the allegations of a complaint manifestly insufficient in substance. Undoubtedly, in such case the legal sufficiency of the pleadings and findings of the jury to support a judgment may be raised after verdict by a motion in arrest. But Todd v. Munson does not modify the well-established rule that a party cannot go to trial upon the issues made by his denials of allegations that may be demurrable, but are material us constituting a part of the plaintiff's case as he presents it, and, upon that trial, claim the benefit both of a demurrer and traverse to the same facts. Such allegations are not "wholly immaterial to the right claimed by the pleadings," within the meaning of section 10, art. 3, of the rules of court established under the practice act.

In this case the defendant did demur to the legal sufficiency of the complaint, stating his ground of demurrer as follows: "Because, if each count is to be regarded as containing only one cause of action, growing out of the alleged breach of the promise of Daniel Hand to pay the plaintiff by will, or at his death, it appears that the contract of Daniel Hand, in such case, was not to be performed in one year from the time it was made; and also because no sufficient facts are alleged in either count to constitute such cause of action, or to entitle the plaintiff to the relief sought in his complaint." This demurrer was overruled. It appears from the memorandum of decision appended to the record, and referred to in the order overruling the demurrer, that the insufficiency of the complaint as a ground of demurrer was not presented by the defendant in his discussion of the demurrer, and that this ground was not passed upon by the court, but was treated as abandoned. If, however, the demurrer to the insufficiency of the complaint must now be treated as overruled, and not simply as withdrawn by the defendant, we think it was properly overruled. As it was not confined to the prayer for relief, but included the whole of the complaint, it did not comply with the statutory provision that "all demurrers shall distinctly specify the reason why the pleading demurred to is insufficient." But if the defendant had properly demurred to the complaint, distinctly specifying the reasons for its insufficiency argued before us, and the court...