Douglass & Varnum v. Village of Morrisville
| Decision Date | 20 March 1911 |
| Citation | 79 A. 391,84 Vt. 302 |
| Parties | DOUGLASS & VARNUM v. VILLAGE OF MORRISVILLE |
| Court | Vermont Supreme Court |
November Term, 1910.
ASSUMPSIT in four counts. Heard at the June Term, 1910 Lamoille County, Butler, J., presiding, on the defendant's general demurrer to the first three counts in the declaration, and on the plaintiff's general demurrer to the defendant's plea to the fourth count. The demurrers to the first and third counts of the declaration sustained, and those counts adjudged insufficient; the demurrer to the second count overruled, and that count adjudged sufficient; the plaintiff's demurrer to defendant's plea sustained, and the plea adjudged insufficient. Both parties excepted. The opinion states the case.
Judgment affirmed as to the insufficiency of the first count, the sufficiency of the second count, and the insufficiency of the plea to the fourth count: but reversed as to the insufficiency of the third count, and that count adjudged sufficient. Both parties having excepted, and neither having fully prevailed thereon, neither are allowed costs in this Court.
C H. Darling, Roger W. Hulburd, and Hunton & Stickney for the plaintiffs.
Present: ROWELL, C. J., MUNSON, WATSON, AND HASELTON, JJ.
The plaintiffs are contractors, and as such, on July 2, 1906, contracted with the defendant for the labor, materials, and construction of a concrete masonry dam and steel penstock for the improvement of the defendant's electric light and power plant, as per a written agreement of that date, signed by both parties, which, and the specifications thereto attached under which the work was to be undertaken and performed, with certain exceptions, are set out in haec verba in the declaration. The only exception important to be noticed here is the one providing that the work should be performed according to the plans and drawings of such an engineer, which plans and drawings are made a part of the contract.
The action is assumpsit to recover the balance due from the defendant for the performance of said contract, and for certain extra work and material required to excavate and fill a fissure in the bed of the river where the dam was to be built, discovered simultaneously by the parties after the contract was executed and the work begun.
The declaration contains four counts. The defendant demurred generally to the first, second, and third by enumeration, and pleaded to the fourth count. The demurrer was sustained as to the first and the third counts, and those counts adjudged insufficient; but was overruled as to the second count, and that count adjudged sufficient, and the defendant concedes that it is sufficient, whereupon the plaintiffs claim that the demurrer is too large, and ought to be overruled altogether. But as it enumerates the counts it is equivalent to a separate demurrer to each count, and so is not too large. Darling v. Clement, 69 Vt. 292, 37 A. 779. The plea to the fourth count was adjudged insufficient on demurrer.
It is objected that the first count is bad because it contains no allegation of a promise by the defendant to pay for the work specified therein, and claimed that such a promise should have been expressly and positively alleged. And it is true that there is nothing in that count that amounts to an express promise by the defendant to pay, though there are allegations of abundant evidence of a quasi promise to pay. But that is not enough. There should have been an averment of assumpsit super se or its equivalent, for assumpsit, without assuming, is no assumpsit. Mr. Gould says that whenever the promise is implied, it is declared upon as an express promise, and that upon the face of the record it is always taken to be an express promise; that there is no such thing as an implied promise in pleading, or rather, that the fact of its being implied appears only in the evidence and never upon the record. Gould, Pl. chap. III, sec. 19. He says in a note to that section that it is held in declaring in assumpsit on a bill of exchange against the drawer or on a promissory note against the maker, that a statement of the facts that render the defendant liable to pay is sufficient without expressly alleging a promise on his part, the reason assigned being that the drawing of the bill or the making of the note is itself an actual promise, so that alleging the act of drawing or of making is virtually alleging a promise by the drawer or the maker, to pay. He says that whether this rule as far as it regards the declaration on a bill of exchange, (in which the drawer makes no express promise,) is agreeable to the analogies and principles of pleading, appears at least questionable, for in an other cases of indebitatus assumpsit the facts stated in the declaration as the ground of the defendant's liability are regarded upon the face of the record only as the consideration of the promise that it alleges and must allege. So Mr. Lawes says that if no express promise is alleged nor other equivalent words used, the declaration will be bad even after verdict, for where the plaintiff declared that in consideration he would surrender a term the defendant would pay him so much, it was moved in arrest after verdict for the plaintiff on non assumpsit that there was no promise laid and therefore none to be tried, and the court being of that opinion, stayed the judgment. Lawes, Pl. [*88], referring to Buckler v. Angel, 1 Lev. 164; s. c. 1 Sid. 246; s. c. 1 Keb. 878. Candler v. Rossiter, 10 Wend. 487, is a good illustration of this rule. There the plaintiff declared in assumpsit for money paid, etc., omitting the ordinary assumpsit super se, but stating instead, the circumstances of his case, namely, that he bought a quantity of fish for the purpose of shipping it to a foreign port; that the defendant put on board the same vessel an equal quantity of fish for the purpose and with the intent of creating a joint adventure so that the parties should share in the profit and loss; and that the fish was so damaged at sea or elsewhere that after it arrived at the port of destination it was sold at a loss, the whole of which the plaintiff sustained and paid without having received any part thereof from the defendant, whereby the plaintiff had suffered damage to such an amount. After verdict for the plaintiff on non assumpsit, the defendant moved in arrest for that the declaration was bad in not laying a promise by the defendant. Mr. Wendell for the plaintiff contended that though the declaration was informal
it was good after verdict; that it was not a case of defective title, for the agreement was stated, the liability charged, and a promise need not be alleged, for it was enough that the evidence justified the jury in finding a promise. But the court held otherwise and arrested the judgment. The plaintiffs make much the same argument here, and say that in respect of recovery for the extra work sued for, concerning which the promise is not express but implied by law, the test of the sufficiency of the allegations of fact in the count to show a promise by the defendant is, whether the plea of non assumpsit would put those allegations in issue, or, in other words, whether proof of the facts alleged would establish such promise. But that is no test, as shown by the case just cited, for it would establish such promise, the necessity of a promise in the declaration would not be thereby obviated, for recovery must be had, if at all, according to the allegations as well as according to the proof. The count is double, as it declares upon two different causes of action though of the same nature, namely, one growing out of the written contract, and the other, out of the extra work. In respect of both of these the plaintiffs claim that the final estimate article of the specifications contains a promise by the defendant to pay therefor. That article provides that upon the completion of the work to the satisfaction and acceptance of the defendant, a final estimate of the total amount of contract and extra work performed by the plaintiffs by order of the defendant shall be made, and that this total sum, less all previous payments, shall be paid to the plaintiffs within thirty days of the date of said final estimate.
It is enough to say of this claim that there is no allegation in the count of any estimate of work under the written contract and none of any such estimate of extra work sufficient to bring the case in that respect within said article. The allegation in respect of extra work is, that the amount and character of material used and labor performed for the excavation and filling of said fissure by the plaintiffs were, on the day next before their demand of payment thereinafter alleged, duly estimated by the defendant's engineer. But that allegation goes only to the amount and...
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