Curtis Funeral Home Inc. v. Smith Lumber Co. Inc.

• Decision Date: 02 January 1945
• Docket Number: No. 927.,927.
• Parties: CURTIS FUNERAL HOME, Inc., v. SMITH LUMBER CO., Inc.
• Court: Vermont Supreme Court

40 A.2d 531

CURTIS FUNERAL HOME, Inc., v. SMITH LUMBER CO., Inc.

No. 927.

Supreme Court of Vermont.

Jan. 2, 1945.

Exceptions from Orleans County Court; Stephen S. Cushing, Presiding Judge.

Action in contract by Curtis Funeral Home, Inc., against Smith Lumber Company, Inc., wherein upon motion and leave obtained an amended declaration was filed to which defendant demurred specially. The demurrer was overruled pro forma, and the cause has been passed to the Supreme Court, on defendant's exceptions, before final judgment in accordance with provisions of P.L. 2072.

Pro forma judgment overruling the demurrer affirmed and cause remanded.

Raymond L. Miles, of Newport, for plaintiff.

Lee E. Emerson, of Barton, for defendant.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

MOULTON, Chief Justice.

This is an action in contract. The writ and the original declaration are dated August 13, 1942. Upon motion and leave obtained an amended declaration was filed on February 23, 1944, to which the defendant demurred specially. The demurrer was overruled pro forma, and the cause has been passed to this Court, on defendant's exceptions, before final judgment in accordance with the provisions of P.L. 2072.

The declaration is long, but it is not necessary to recite it in detail for its material allegations may be briefly given. Originally it alleged that on August 6, 1941, the defendant sold and agreed to deliver to the plaintiff a specified list of windows, window frames, sashes and trim, screens, doors, door frames, jambs and trim; that the agreement was modified from time to time, until the final date for delivery, December 1, 1941; that payment of the purchase price, $1359.94, was made by the plaintiff in two installments in accordance with the contract; that the defendant neglected to deliver certain enumerated items on or before December 1, 1941; and that damage was suffered by its default. The amendment includes the above, and alleges that the defendant, before entering into the contract, was informed that the merchandise was wanted by the plaintiff to renovate and repair its buildings, so that it could be used as a place of business in the spring of 1942, that the plaintiff had engaged carpenters, plasterers, plumbers and electricians to work during the winter of 1941-1942, and had purchased and arranged to purchase lumber for interior decorating, plaster and plumbing and electric fixtures, and that the delivery of the merchandise to be furnished by the defendant was required to be made by December 1, 1941, in order to use the material and labor for which the plaintiff had arranged; that of the merchandise not delivered on that date, the plaintiff received, between September 26, 1941, and October 31, 1942, certain items consisting of weatherstrips and springs, storm sash, two sets of trim and one window sash, but by reason of the delay, it was obliged to and did expend a large sum of money in attempting to assemble and install the windows in connection with which these articles were required; that several described window frames were too large for the windows furnished with them, and that the plaintiff will be obliged to purchase new windows and employ carpenters to install them; that because of the defendant's default in failing to furnish windows in accordance with the contract, the interior work could not be completed, that the plaster and lime already purchased became hard and useless, necessitating the purchase of new plaster at an increased price, and that the plaintiff was forced to and did pay the carpenters a higher wage than it otherwise would have done.

The defendant's thesis regarding the first two grounds of the demurrer is that the amended declaration alleges three separate causes of action, for nondelivery of part of the merchandise, for delay in delivering of part of it, and for delivery of certain window frames which were not of the dimensions specified in the contract; which is, in effect, that the declaration is bad for duplicity. Gould, Pleading, 4th Ed., 205.

Duplicity is a defect of form and not of substance. Johnson v. Hardware Mutual Casualty Co., 109 Vt. 481, 489, 1 A.2d 817. At common law this fault in a declaration could be reached only by a special demurrer. Lewis v. John Crane & Sons, 78 Vt. 216, 220, 62 A. 60; 1 Chitty, Pleading, 16th Am.Ed., 252; Gould, Pleading, 4thEd., 430, n. 1. But under our Practice Act, which provides, P.L. 1578, that a pleading shall not fail for want of form and that the sufficiency of all pleadings in this respect is for the discretionary determination of the trial court, the function of a demurrer is to test the sufficiency of a pleading in matters of substance only. Coburn v. Village of Swanton, 95 Vt. 320, 324, 325, 115 A. 153. The modern demurrer resembles the former special demurrer merely in that the Act, P.L. 1574, III, requires it distinctly to specify the reason why the pleading demurred to is insufficient. Coates v. Eastern States Farmers Exchange, 99 Vt. 170, 177, 130 A. 709. It follows that, in our practice, special demurrers as known in the common law have been impliedly abolished, and therefore duplicity in pleading, being, as we have seen, a defect in form, is to be reached by an appropriate motion under the provisions of P.L. 1578. A similar procedure obtains in other jurisdictions where special demurrers are no longer recognized. Sec. Ordinary of State v. Barnes, 67 N.J. Law 80, 50 A. 903; Gately v. Taylor, 211 Mass. 60, 97 N.E. 619, 39 L.R.A.,N.S., 472, 474; Rogers v. Smith, 17 Ind. 323, 79 Am.Dec. 483; National Express Co. v. Burdette, 7 App.D.C. 551, 558.

Under the circumstances, however, we treat the demurrer, in so far as it raises the question of duplicity, as if it were a motion under the statute, and had been regarded as such by the trial court. As it called for the exercise of discretion it was error to rule upon it pro forma. Ainger v. White's Adm'x, 85 Vt. 446, 450, 82 A. 666; Fitzsimmons v. Richardson, Twigg & Co., 86 Vt. 229, 236, 84 A. 811. But in determining...