Dominick v. Harmony Talking Machine Company

• Decision Date: 04 October 1913
• Docket Number: [NO NOMBER IN ORIGINAL]
• Court: Delaware Superior Court
• Parties: MICHAEL DOMINICK, otherwise known as MATTHEW DOMINICK, d. b. a., v. HARMONY TALKING MACHINE COMPANY, p. b. r

88 A. 468

27 Del. 293

MICHAEL DOMINICK, otherwise known as MATTHEW DOMINICK, d. b. a., v. HARMONY TALKING MACHINE COMPANY, p. b. r

[NO NOMBER IN ORIGINAL]

Superior Court of Delaware, New Castle County

October 4, 1913

Superior Court, New Castle County, November Term, 1913.

ACTION ON APPEAL (No. 48, November Term, 1912), from a judgment rendered by a justice of the peace.

General demurrer to the pro narr. containing a special count in assumpsit and another in covenant, with the common counts. The demurrer was sustained. The questions of law presented appear in the opinion.

Demurrer sustained.

W. W Knowles for defendant below appellant.

Lilburne Chandler for plaintiff below respondent.

Judges WOOLLEY and RICE sitting.

OPINION

WOOLLEY, J.

The pro-narr. in this case consists of two special counts and five common counts. The first special count is in assumpsit, in which an express contract for the sale and delivery of goods and wares is stated by its substance and effect. The second special count is in covenant, stating by its tenor a contract under seal, likewise for the sale and delivery of goods and wares, wherein damage for breaches are unliquidated. The remaining five counts are common counts in indebitatus assumpsit.

The cause of action declared upon in covenant in the second special count may in fact be the same cause of action pleaded in substance and inappropriately declared upon in assumpsit in the first special count, or it may be, and upon the state of the pleadings, it must be considered an entirely separate and distinct cause of action. The causes of action in the two special counts must be considered separate and several causes of action for the reason that an action in assumpsit and an action in covenant will not lie indifferently to the same cause of action, and as the pleader has here counted in both forms of action it must be inferred that he is declaring on two causes of action different in their form.

The counts of indebitatus assumpsit may relate to the matter first declared upon by special assumpsit; they certainly cannot relate to the matter next declared upon in covenant.

Whatever may have been the pleader's motive in combining these various and to some extent conflicting counts, it is certain, as this is an action on appeal from a judgment rendered by a justice of the peace, that each one of the seven counts must relate to and be a declaration of the precise cause of action tried below. What was the cause of action below and how many were there?

The transcript of the justice, upon which the appeal is founded, discloses that the action below was in "assumpsit" and the cause of action was "a contract for goods sold and delivered", and fails to disclose whether the contract was express or implied, written or oral, and if written, whether it was under seal or not under seal.

It is contended that the declaration as composed of its various counts is...