Maine Central Institute v. Haskell

• Decision Date: 06 December 1880
• Citation: 71 Me. 487
• Parties: MAINE CENTRAL INSTITUTE v. OREN S. HASKELL and another, Executors of Going Hathorn.
• Court: Maine Supreme Court

71 Me. 487

MAINE CENTRAL INSTITUTE v. OREN S. HASKELL and another, Executors of Going Hathorn.

Supreme Judicial Court of Maine.

December 6, 1880

ON REPORT.

An action against the executors of the last will and testament of Going Hathorn, to recover the amount of a subscription made by the testator to the building fund of the Maine Central Institute. The only averment in the declaration of notice of the claim and demand of payment, is as follows:

" And the plaintiffs aver …. that more than one year, and not exceeding two years, have elapsed since the appointment of said defendants as executors aforesaid, and that more than thirty days have elapsed since said plaintiffs gave notice in writing to said executors of the claim aforesaid, and that notice was so given in writing by said plaintiffs, to said defendants, on the fourth day of March A. D. 1877, of the claim aforesaid."

The writ was dated April 30, 1877, and entered at the September term, 1877. At the March term, 1880, the defendants filed a general demurrer. After the demurrer was filed and before joinder the plaintiffs asked leave to make the following amendments:

(Amendments.)

" Supreme Judicial Court, Somerset county, March term, 1880. And now the plaintiffs move to amend the first and second counts in their writ by adding at the end of each, the words ‘ and the plaintiffs aver that said claim was presented in writing to said defendants, executors as aforesaid, and payment thereof demanded, on the fourth day of March, A. D. 1879, which was more than thirty days before the commencement of said action, and that more than one year and less than two years have elapsed since notice of defendants' appointment as executors was given by them.'

By their attorneys, Strout & Gage. "

The remaining facts appear in the opinion.

S. C. Strout, & H. W. Gage, for the plaintiffs.

The objections to the declaration are raised only by general demurrer.

All objections to the form of pleading must be by special demurrer. This demurrer being general, the defects, if any, to be considered, are only those of substance. Chitty on Pleadings, vol. 1, 9th Am. ed. 662; Neal v. Hanson, 60 Me. 86.

It is well settled that a demurrer to a declaration containing several counts cannot be sustained, if any one of such counts is good. And if the third count in the writ, which is more full and specific than the others, is good, the sufficiency of the others is immaterial.

The allegations of notice, required by statute of 1872, c. 85, § 12, are, we think, sufficient. The time of the presentment of the claim, in writing, to the proper persons is stated, and that it was more than thirty days before the commencement of the action, and within two years after notice of defendants' appointment.

It is true it does not say, in so many words, that payment was demanded, but the words used are equivalent to that, its meaning is unmistakable, and the pleader here seems to have used the same language in calling it notice as that used by the court in speaking of the same subject matters in Eaton v. Buswell, 69 Me. 552.

It clearly comes within the provisions of § 9 of c. 82, R. S., that no process shall abate, & c., for want of form only, when the case can be rightly understood.

Besides, here is a general demurrer only, and had the allegations been omitted altogether it would have been sufficient. Laws on Pleadings,* page 241.

But it is clear that when some allegations of notice are made, as here, it is no longer cause of general demurrer, but the objections must be assigned as cause for special demurrer. Laws on Pleadings,* pages 229 and 245; Chitty on Pleading,* pages 663 and 664; Bowdell v. Parsons, 10 East. 364.

We insist, therefore, that the third count is good, both in substance and form. It sets out the written promise of Hathorn, states the consideration therefor, that defendants, relying upon such promise, have expended large sums of money and been otherwise injured, and that plaintiffs gave the notice required by the statute to the defendants.

It appears that all the counts are based upon the same promise. Only one notice to the executors was required; at a trial, proof of one would be sufficient. The law favors brevity and conciseness in pleading, and to repeat such allegation of notice at the end of each count would make the pleadings unnecessarily long, and furnish no information not already furnished to the defendants, or additional aid to the court in rightly understanding the case. And we submit that, standing as it does at the close of the declaration in the writ, it may, with propriety, and should be, treated as a general allegation, applicable alike to each count. Vide Chitty on Pleading, page 726.

If the declaration is held insufficient, the plaintiffs should be allowed to amend the first and second counts, as prayed for. R. S., c. 82, § 9; Simpson v. Norton, 45 Me. 284; Rowell v. Small, 30 Me. 30; Pullen v. Hutchinson, 25 Me. 252; R. S., c. 82, § 19; Fryeburg v. Brownfield, 68 Me. 147.

D. D. Stewart, for the defendants, cited: Stat. 1872, c. 85, § 12; Eaton v. Buswell, Adm. 69 Me. 552; Cottage Street Church v. Kendall, 121 Mass. 529; Mirick v. French, 2 Gray 423; Farmington Academy v. Allen, 14 Mass. 172; Trustees Bridgewater Academy v. Gilbert, 2 Pick. 579; Foxcroft Academy v. Favor, 4 Greenl. 382; R. S., c. 82, § 19; Wakefield v. Littlefield, 52 Me. 22; Crocker v. Craig, 46 Me. 327; Hathorn v. Towle, 46 Me. 302; Fryeburg v. Brownfield, 68 Me. 147.

SYMONDS J.

We think there is no defect in the manner of setting forth the consideration for the promises alleged in the declaration such as to render either of the counts bad...