Ramsey v. Johnson

• Decision Date: 04 November 1899
• Citation: 8 Wyo. 476,58 P. 755
• Parties: RAMSEY v. JOHNSON
• Court: Wyoming Supreme Court

58 P. 755

8 Wyo. 476

RAMSEY v. JOHNSON

Supreme Court of Wyoming

November 4, 1899

For former opinion, see 52 P. 1084.

ON petition for rehearing. The original hearing reported, 7 Wyo 392.

Rehearing denied.

E. E Enterline, and D. A. Reavill, for the plaintiff in error.

The petition failing to allege an assignment of the lease, the property is not bound for the sum alleged to be due to the assignee. The second cause of action is insufficient, not being complete in itself. (Bliss Code Pl., 121; Pomeroy Rem 575.)

POTTER, CHIEF JUSTICE. CORN, J., concurs. KNIGHT, J., did not sit.

OPINION

POTTER, CHIEF JUSTICE.

Plaintiff in error files a petition for rehearing, setting forth the following reasons therefor:

1. That the court erred in its statement of facts in stating that the petition set out an assignment of the lease, and in stating that the petition alleged that by the terms of the lease there was a lien upon certain personal property upon the premises, and belonging to the defendant, to secure the payment of the sum claimed to be due.

2. That the court erred in holding that reference could be made to the first cause of action to supply material facts omitted in the second cause of action; and in holding that the second cause of action contained a sufficient statement of facts.

3. That the court erred in holding that reference is made in the findings to the lease described in the pleadings.

4. That the court erred in holding the findings sufficient to support the judgment.

5. That the court erred in affirming the judgment.

It is contended that the petition is insufficient because it did not allege an assignment of the lease, and that this court in its former opinion erroneously recited such an assignment. The recitation of such fact in the opinion may not have been accurate, and probably was not; but it is entirely immaterial. The plaintiff was not required to plead an assignment of the lease, nor to prove it. The lease itself may not, as a matter of fact, have been assigned. The first cause of action is founded upon a claim for rent of certain premises due and accrued under the terms and agreements of a contract of lease alleged to have been executed between the plaintiff in error, and one William A. Johnson. It is alleged that, "after said amount became due and payable to the said William A. Johnson, as above set forth, and prior to the commencement of this action, the said William A. Johnson sold, assigned, and transferred to the plaintiff, all of his right, title, and interest in and to said amount, and the right to receive the same from the defendant, for a good and valuable consideration, and that the plaintiff is now the real party in interest in this action."

That averment is clearly sufficient to show the right of the plaintiff to recover the amount alleged to have become due, and the assignment of the lease was not essential to her right. The lease was made in December, 1893, and by its terms was to run for seven years. The amount sued for was the rent for the year 1895. There may well have been an assignment of the rent due and accrued for that year without a transfer of the lease.

By the second cause of action it is sought to enforce a lien upon certain personal property upon the leased premises claimed to be provided by the lease as security for the fulfillment of its conditions.

As to that matter, or right also, no specific assignment of the lease is required. It is a familiar rule of law that an assignment of a debt carries with it every remedy and security for such debt available to the assignor as incident thereto, although they are not specifically named in the instrument of assignment. (2 Ency. L., 1084; Graham v. Blinn, 3 Wyo. 746, 30 P. 446.)

It is further insisted that the petition contained no averment that the property charged with being subject to the lien belonged to defendant. There is no direct allegation of that fact in the petition. The trial court, however, so found. But that it did belong to the defendant is necessarily to be inferred from the other allegations. It is averred that the property is on or near the leased property, in the possession of defendant, and that the latter has no other property, etc. It is also stated that defendant had already disposed of a part of the property covered by the lien, and a fear that he will dispose of the remainder is alleged as ground for the appointment of a receiver which is prayed for.

But an allegation that defendant owned the property is not essential. As against one who has given a lien upon property to secure a debt due or to become due from him, we know of no rule requiring an allegation of ownership in the debtor in a suit to foreclose or enforce the lien. There does not appear to be other claimants, and as against plaintiff in error (defendant below), so far as the petition is concerned, it is sufficient to presume that he agreed to a lien upon property belonging to himself.

Regarding the second ground for the rehearing, it will be well to say, in the first place, that the court in its former opinion did not hold that reference could be made to the first cause of action to supply material facts omitted in the second cause of action. The second cause of action was held sufficient, and we did hold that it was unnecessary to repeat the allegations contained in the first cause of action respecting the execution of the lease; but that the averment that "under and by the terms and conditions of said agreement of lease, it was agreed," etc., was sufficient. This was so held on the ground that clear and distinct reference is made to the agreement already set out in the petition, and that such a reference is permissible. This reaches the principal objection which counsel urges against the petition. The allegation of the cause of action assailed, is in substance that "under and by the terms and conditions of said agreement of lease," it was agreed that the personal property and improvements on said property should be held as security for the fulfillment of the conditions of said lease. It is insisted that the allegation is insufficient, because the execution of the agreement of lease is not again specifically averred.

Counsel rests his contention upon the general rule which is well settled, that each cause of action must be complete in itself; and he relies upon the statement and interpretation of that rule found in Bliss on Code Pleading and in Pomeroy's Remedies and Remedial Rights. It may be seriously questioned whether either of the authors named intended to give such a narrow interpretation to the rule as must be given to it, if counsel's application of it is to be sustained.

At common law, different counts in a declaration are treated for all purposes as distinct as if they are separate declarations, and unless a second count expressly refers to the first, no defect therein will be aided by the preceding count. But it is essential that unnecessary repetition be avoided, and the approved practice at common law, is by an inducement in the first count to apply any matter to the following counts, and to refer in the subsequent counts to such inducement, thus avoiding unnecessary prolixity. (1 Chitty on Pleading, 16th Am. Ed., 429.) And, it is held that at common law an express adoption in a second count of all the allegations of the first is permissible, although the practice is not commended. Florida Cent. & P. R. Co. v. Foxworth, 41 Fla. 1, 25 So. 338 (Fla.). See also Dent's Adm'r. v. Scott, 3 H. & J. 28; Freeland v. McCollaugh, 1 Denio 414; Crookshank v. Gray, 20 Johns. 344.

Under the code system of pleading the prevailing judicial opinion is that in stating several causes of action, it is not necessary to repeat every general averment essential to each or common to them all, but that as to such matters reference may be made to distinct allegations in a preceding cause of action, thereby incorporating them in a subsequent cause of action and avoiding useless...