Goodrich v. Stanton

• Decision Date: 04 January 1899
• Citation: 42 A. 74,71 Conn. 418
• Court: Connecticut Supreme Court
• Parties: GOODRICH v. STANTON.

42 A. 74

71 Conn. 418

GOODRICH

v. STANTON.

Supreme Court of Errors of Connecticut.

Jan. 4, 1899.

Appeal from superior court Fairfield county; Silas A. Robinson, Judge.

Action by Alfred L. Goodrich against Albert N. Stanton. There was a judgment for defendant and plaintiff appeals. Error.

Action on two notes against Albert N. Stanton as the indorser. Demurrer, and judgment for defendant. The action was originally brought in October, 1892, for $1,500, on the common counts. In 1897, a so-styled "Supplemental Complaint" was filed, containing a "second" and "third" count The second count was in the ordinary form, on an indorsement of a note for $1,000, drawn to the order of the defendant, due and dishonored on May 12, 1892. The third count was in similar form, the note described being one payable November 14, 1892. Copies of the notes and indorsements were afterwards filed as exhibits, and were as follows: Exhibit A under second count: "$1,000. Bridgeport Ct, Nov. 9th, 1891. Six months after date, I promise to pay to the order of Albert Stanton one thousand dollars, at First National Bank, with interest at 6%. Value received. Chas. E. Wellboro. No. 1. Due May 12." Indorsed on back as follows: "Without recourse, pay to the order of Alfred L. Goodrich. Albert Stanton. Albert N. Stanton." "Pay order H. H. Remington. Alfred L. Goodrich." Exhibit B under third count: "Int., $60.83; $1.000—$1,060.83. Bridgeport, Ct., Nov. 9th, 1891. Twelve months after date, I promise to pay to the order of Albert Stanton one thousand dollars, at First National Bank, with interest at 6%. Value received. Chas. E. Wellboro. No. 2. Due Nov. 12." Indorsed on back as follows: "Without recourse, pay to the order of Alfred L. Goodrich. Albert Stanton. Albert N. Stanton. Alfred L. Goodrich." A demurrer to both counts was sustained on the ground that the indorsement was without recourse. A "Substituted Supplemental Complaint" was then filed, containing another "second count." This set forth the following state of facts: On November 16, 1891, the plaintiff sold a yacht to the defendant, which he was to pay for by two notes similar to Exhibits A and B, with his indorsement. On November 24th the defendant tendered the notes, indorsed: "Without recourse, pay to the order of Alfred L. Goodrich. Albert Stanton." The plaintiff refused to accept them unless indorsed by the defendant without restriction of liability, and so notified the defendant. To induce the plaintiff to accept the notes and deliver the yacht the defendant, on November 27th, indorsed them on the terms stipulated by the plaintiff, as appears by the second indorsement of "Albert N. Stanton," and thereupon the plaintiff accepted the notes and delivered the yacht. Demand and notice as to each were then alleged. A demurrer was filed to this count on various grounds upon which it was claimed that no cause of action was alleged, and also to so much of it as counted on a note coming due after the action was begun. It was sustained as to the point that no cause of action at all was shown, but overruled as to the point last mentioned. "Additional counts" were then filed, comprising a third, fourth, fifth, and sixth, each stating the transaction in a slightly different form, and each seeking a recovery on both notes, and concluding with a claim for $2,500 damages. Each of these counts was held insufficient on demurrer, and final judgment thereupon rendered for the defendant. He filed a bill of exceptions after the plaintiff had appealed to the ruling against him as to the point raised by the demurrer to part of the substituted second count and it was allowed and made part of the record.

William D. Bishop, Jr., and William B. Boardman, for appellant.

John W. Ailing, for appellee.

BALDWIN, J. (after stating the facts). This action was brought upon a complaint which consisted simply of the common counts, claiming $1,500 damages. Before the cause could be in a condition to justify proceeding to judgment, it was necessary for the plaintiff to file a bill of particulars, of such further statement, by way either of a substituted complaint or of amendment, as might be requisite to show the true nature of his demand. Practice Book, p. 12, § 1. He waited nearly five years, and then filed what he styled a "Supplemental Complaint," consisting of a "second count" and a "third count," and showing that this demand was one against the indorser of two promissory notes, one of which, declared on in the second count, had matured before, and the other, which formed the subject of the third count, after, the commencement of the suit.

The common counts can only be used when one or more of them furnish "an appropriate general statement of the cause of action." Practice Book, p. 12, § 1. None of them are applicable to the liability of an indorser. No objection, however, was made to the filing of the so-called "Supplemental Complaint." It was treated by the parties and by the superior court as a substituted complaint within the rule, and a demurrer filed to it, which was sustained. What was styled a "Substituted Supplemental Complaint," setting forth a "second count," in which both notes were declared on as the matter of recovery, was then filed. This took the place of the complaint for which it was substituted, and that dropped out of the case. It remained on the files, and constituted part of the history of the cause, but could furnish no basis for a future judgment; nor could any previous ruling upon it be made a subject of appeal. Another demurrer was filed and sustained to the "Substituted Supplemental Complaint," whereupon four additional counts were filed. Such an amendment of the complaint should not have been allowed. A single transaction, resulting in the indorsement of two notes, was thus made the subject of six counts, each of which sets it out in a slightly different way, with the aim of...