Dunnett v. Thornton

• Court: Connecticut Supreme Court
• Writing for the Court: HAMERSLEY, J.
• Citation: Dunnett v. Thornton, 73 Conn. 1, 46 A. 158 (Conn. 1900)
• Decision Date: 02 May 1900
• Parties: DUNNETT v. THORNTON.

46 A. 158

73 Conn. 1

DUNNETT

v. THORNTON.

Supreme Court of Errors of Connecticut.

May 2, 1900.

Appeal from court of common pleas, Litchfield county; Gideon H. Welch, Judge.

Action by Alexander Dunnett against Edward R. Thornton for money due on an account stated. From a judgment in favor of the defendant, plaintiff appeals. Reversed.

The original rules under the practice act provide: "The form of complaint hereinafter provided, and denominated 'the common counts,' may be used for the commencement of an action, when any of these counts is an appropriate general statement of the cause of action; but the defendant shall not be required to plead, nor shall any default be taken, until the plaintiff has filed a proper bill of particulars, or such further statement, by way either of a substituted complaint or of amendment, as may be necessary to show his cause of action as fully as is required in other cases; and such statement, where the demand is founded on an express contract, whether executory or executed, shall set forth the terms of the contract. Where a bill of particulars only is filed, all the counts not applicable thereto shall be struck out by amendment. The bill of particulars, substituted complaint, or amendment, provided for by the above rule, must be filed within ten days after the return day of the writ, unless otherwise agreed by both parties, or ordered by court." These rules were slightly changed in 1899. Practice Book, pp. 12, 15; Rules of Court, §§ 129, 155. The form of complaint referred to in the rule, as provided for the commencement of an action, is form 85 of the Practice Book, p. 60, and is as follows: "(1) On and before January 1st, 1879, the plaintiff lent $1,000 to the defendant; (2) and paid, laid out, and expended said sum for the defendant; (3) and sold and delivered goods wares, and merchandise of the price and value of said sum to the defendant; (4) and bargained and sold goods, wares, and merchandise of the price and value of said sum to the defendant; (5) and performed work of the price and value of said sum for the defendant; (6) and furnished materials of the price and value of said sum to the defendant; (7) and on said day the defendant had and received said sum to and for the use of the plaintiff; (8) and used and occupied certain lands of the plaintiff by his permission, which use and occupation were reasonably worth said sum; (9) and said sum was found to be due to the plaintiff from the defendant, on an account then and there stated between them; (10) yet, though said sums are justly due to the plaintiff from the defendant, the defendant has never paid the same. The plaintiff claims $1,200 damages." The plaintiff's complaint contains nine causes of action stated as in form 85, and also two additional paragraphs,—one stating a cause of action arising from furnishing board and lodging, washing, and fuel; and the other, a cause of action arising from furnishing horses, harness, carriages, and vehicles. After the 10 days, as well as the time limited for amendment without payment of costs, had expired, the plaintiff filed with the clerk of the court a substituted complaint as an amendment, which, in substance, alleges that one Chase agreed with the defendant to sell to him certain supplies then in the Hotel Winchester, to be invoiced at cost, and the defendant agreed to pay for the same so far as they were in good condition; that afterwards the said Chase did sell and deliver said supplies to the defendant, and the defendant thereupon agreed to pay to the plaintiff the sum to fall due to said Chase under said invoice, which had not been taken at the time of the sale and delivery; that in pursuance of said sale the defendant entered into possession of said supplies, and accepted and used the same; that subsequently, in pursuance of the terms of said sale, said Chase and the defendant, in co-operation with the plaintiff, made an invoice of said supplies at cost, and settled the amount due for the same at $798.65, which the defendant agreed to pay the plaintiff; and that upon demand the defendant refused to pay the plaintiff said sum. The substituted complaint also alleges that said Chase assigned certain Insurance policies to the defendant, and in consideration thereof the defendant promised to pay the plaintiff $66.67, and that the defendant, on demand, refused to pay the same. It was too late to file an amendment without leave of court, and the plaintiff asked permission of the court to file this substituted complaint. The defendant objected to the granting of such permission, because the action was commenced by using the form of complaint denominated as the "common count," and no one of said counts is an appropriate general statement of the cause of action, according to the allegations in the substituted complaint The court (Welch, J.) denied the plaintiff's motion for the reasons stated in the defendant's objection. To this action of the court the plaintiff duly excepted. The court then ordered the plaintiff to file, within a time fixed, "a proper bill of particulars, or such other statement by way of either a substituted complaint or an amendment, as may be necessary to show his cause of action under the common counts as fully as required in other cases." For the plaintiff's neglect to comply with this order the court granted a Judgment of nonsuit in favor of the defendant. The appeal assigns error in refusing, on the ground stated by the court, leave to amend, and in rendering the judgment of nonsuit.

Alexander Dunnett and Walter Holcomb, for appellant Samuel A. Herman, for appellee.

HAMERSLEY, J.The practice act abolished forms of action. With its enactment, pleading, as a system of technical form, substantially disappeared. The person claiming redress for legal wrongs done him by another may now state in one complaint all facts material to support his claim, and demand redress for all wrongs that can be legally inferred from the facts stated, subject, where redress is sought upon several causes of action, to the limitations of section 6 of the original act, and to the discretionary power to strike out one or more of the causes of action if it appear to the court that they cannot all be conveniently heard together. Legal duties are enforced if they arise upon the facts simply stated. They are no longer affected by any mere form of statement. The only rule as to this is "a plain and concise statement of the material facts on which the pleader relies." Craft Refrigerating Mach. Co. v. Quinniplac Brewing Co., 63 Conn. 551, 559, 29 Atl. 76, 25 L. R. A. 856. The trial court is given power, largely discretionary, to enforce a truthful, concise, and orderly statement, of material facts. These attributes belong to all statements upon which judicial action is based, and the observance is important under the practice act as well as under the common law. Morehouse v. Throckmorton, 72 Conn. 449, 452, 44 Atl. 747. But at common law their observance was enforced through an elaborate system of formalities, largely based on the necessity of stating facts within the limitations of certain arbitrary forms of action. It was a special purpose of the practice act to entirely do away with this product of the infancy of judicial administration, and to provide against the growth of any new and possibly worse system of formality. Justice applies the principles of jurisprudence to facts stat ed and proved. While these principles are undeveloped, pleading naturally relies on form, and the form often controls the Drinclple but with the growth of Jurisprudence and a better appreciation of essentials the rule of form must give way to the rule of simplicity and truth. Pleading, then, ceases to be the mistress, and becomes the handmaid of justice. A change like that contemplated in the practice act cannot be accomplished by the simple enactment of a law. After the legislative command, the profession and the courts require time to give full and true effect to a principle involving unforeseen modifications. In this we may find help in the practice of our sister states, where a somewhat similar change has been made; but such aid is not always reliable. This is natural. The early codes were enacted when the old system of form was much more strongly entrenched than now, and could hardly be expected to sufficiently provide against the growth of a new system of form; while the change in Connecticut was made so late that we had the benefit to be derived from a study of results in other states and in England, and could, and did, adopt provisions intended to prevent the aftermath of technicality that was liable to follow. Among these provisions was one that the judges of the superior court should from time to time make such orders and rules as shall be necessary and proper to give full effect to the provisions of the act. Of course, such rules cannot alter the act; they can only give effect to its real purpose. One of the rules first adopted provided that the accompanying 468 forms may be used and shall be deemed sufficient in all cases to which they are applicable, subject to the right of the party to amend and of the court to order fuller statements. These forms are not prescribed; their use is not obligatory; they establish no technical form of statement; they are simply illustrations of a proper manner of stating the facts material to a number of causes of action. Their purpose was largely temporary,—i, e. to forestall during the inauguration of the change much unprofitable discussion by providing statements adapled to ordinary cases, which, with such changes as the court may order, shall be deemed sufficient, and to aid the profession in the task of freeing themselves from the trammels of the old system, and of acquiring the simplest method of stating material facts, independent of the requisites peculiar to the old forms of action. As the judges said when the rules were adopted: "The bar has...