Riley v. Jarvis

• Decision Date: 19 December 1896
• Citation: 43 W.Va. 43,26 S.E. 366
• Parties: RILEY. v. JARVIS et al.
• Court: West Virginia Supreme Court

26 S.E. 366

43 W.Va. 43

RILEY.

v.JARVIS et al.

Supreme Court of Appeals of West Virginia.

Dec. 19, 1896.

Suretyship— Pleading—Variance—Bill of Particulars—Pleas in Abatement—Arbitration—Res Judicata— Final Judgment.

1. Where two persons sign an obligation for the payment of money, and it is expressed in it that one signs as surety, and he annexes to his signature the word "surety, " still both are bound jointly.

2. In such case the declaration need not notice the suretyship, because immaterial.

3. Allegata and probata must correspond. Where there is no count in a declaration on the cause of action shown by the evidence, it is a variance, and there can be no recovery.

4. A bill of particulars filed with a declaration in an action of assumpsit, under section 11, c. 125, Code, is no part of the declaration, and there can be no plea to it.

5. If there be no count in the declaration based on the claim specified in such bill of particulars, the items it contains cannot be proven, and no recovery can be had therefor.

6. A plea of res judicata must show that the former judgment was on the merits.

7. Where an order is made by consent in a justice's court, submitting the matter in controversy to arbitration, the submission is not revocable, except by order of the justice, under the statute, and that submission is a bar to a second suit for the same cause.

8. A plea of such submission to arbitration, filed in a subsequent action in a circuit court on the same cause of action, must be in abatement, not in bar, and comes too late after pleas in bar have been filed.

9. Where there is more than one count in a declaration, and a demurrer is sustained and judgment for defendant as to some of them, and overruled as to others, the judgment upon the counts held bad is not such final judgment as to give a writ of error until the case ends as to the remaining counts.

(Syllabus by the Court.)

Error to circuit court, Taylor county.

Assumpsit by Oscar F. Riley against Claude S. Jarvis and another. There was a judgment for plaintiff, and defendants bring error. Reversed.

J. T. McGraw and J. W. Mason, for plaintiffs in error.

W. R. D. Dent, for defendant in error.

BRANNON, J. Oscar F. Riley brought assumpsit in the Taylor county circuit court, and, judgment having been rendered against the defendants, Claude S. Jarvis and Granville E. Jarvis, they bring the case here.

The defendants demurred to the declaration and each count, and the court sustained the demurrer and gave judgment upon such demurrer upon all the counts except the first, and overruled it as to that count. The first count is the ordinary indebitatus assumpsit for goods, wares, and merchandise sold and delivered. The second is a special count, alleging that defendants and plaintiff made a written contract whereby Claude S. Jarvis agreed to pay individually, out of his own funds, to plaintiff, $10 per month, so long as they should continue in business together, or so long as the plaintiff should run the business in a businesslike and profitable manner, as part consideration for his time and labor about the business; that Granville E. Jarvis executed the writing and bound himself equally with Claude S. Jarvis, as security for him; and that the plaintiff, under the writing, carried on the business for a certain specified time, for which the defendants became bound to pay him $120, but they refused and failed to do so, etc. The third count was indebitatus assumpsit, containing a clause for goods and chattels sold, horses sold, work done, and material therefor provided, and other common clauses.

Appellants' counsel contends that there is a misjoinder of counts, and this on the idea that the liability stated in the second count is against Granville E. Jarvis only as surety, while other counts charge both Claude S. and Granville E. Jarvis with joint liability. I think there is nothing in this contention. Where two parties, by written obligation, bind themselves to pay another a given sum, though one sign with the word "surety" annexed to his name, or it be stated in the writing that he is surety, or binds himself as surety, both are equally bound as principals, so far as it concerns the creditor's right, as they both promise to pay him. It is a mere memorandum to evidence the fact that the one is surety as between the parties bound. Hunt v. Adams, 5 Mass. 358; Id., 6 Mass. 519; Humphreys v. Crane, 5 Cal. 173; opinion, Harris v. Brooks, 21 Pick. 195; Wilson v. Campbell, 1 Scam. 493. Where the surety does not sign the note, but puts a memorandum at its foot that he binds himself as surety for payment of the note, it is the same. The obligation is joint and several. Hunt v. Adams, 5 Mass. 358; Wilson v. Campbell, 1 Scam. 493. I do not think the declaration need have noticed the suretyship feature, as its omission would have been no variance, because immaterial; and, being in the declaration, it does not have any effect, the count charging a joint liability notwithstanding its presence.

The defendants moved the court to strike out the plaintiff's evidence, but the motion was refused. The only evidence the plaintiff offered was the written contract, and of service under it by the plaintiff. That evidence could not sustain the action, because it presented a case of variance between allegata and probata, as the only count of the declaration remaining after action on the demurrer was that one for goods sold and delivered, the first count, and thus there was no count to justify evidence of service performed, and the plaintiff's evidence should have been stricken out. The case was tried, likely, under a misconception that it was the second or special count, for service under the written agreement, that was left standing after the court's action on the demurrer; whereas, as it is said, andis likely, by mistake In making up the record, it was the first count only that was left. We must go by the record. We have no knowledge of fact by which to correct it, and no power to correct it. The account filed with the declaration specifies, as the ground of the plaintiff's claim, service performed under the contract; but when the court, upon demurrer, struck out all of the declaration under which that account was provable, the account went out with the count to which it related, or became unprovable under the count remaining. The account is no part of the declaration. You cannot plead to it. There must be a count in the declaration for it to rest upon, —one suiting its nature under which it may be proved. So that specification on account cannot shelter this evidence. It is said, in brief of counsel, that the defendants offered evidence in defense, and that this would justify the action of the court in refusing to strike out the plaintiff's evidence. The record contains not a scintilla of any evidence given by defendants. Whatever the fact may have been on the trial, we know only the record. Moreover, had there been such evidence, it would not sustain the court's action; for, while it is true that a motion to exclude the plaintiff's evidence must be made before the defendant offers any, I suppose the case is different where it is one of total variance between allegata and probata, as there is no count at all to rest the evidence on. Though you have ever so strong a case for recovery under the evidence, you cannot recover without a declaration to admit that evidence.

Again, it is said that the defendants waived their demurrer as to the second count on the theory that they pleaded to it. The court gave final judgment upon the demurrer in favor of the defendants on that second count, and how even a plea to that specific count at a subsequent term could bring back that count to the declaration I cannot see, or how they could waive their demurrer. But there was no plea to that second count specifically. The plea of payment relied on as such waiver was made at a term after that at which the court acted on the demurrer, and that plea, so far from being applicable to the second count, was applicable only to the declaration as it then stood, —that is, to the first count.

It is argued that the plea of payment is to the account filed as a specification of the plaintiff's claim, and that is for service, thus treating the demand specified in it as before the court. (1) The plea is in terms to the debt demanded in the declaration. (2) There can be no plea to a bill of particulars. Abell v. Insurance Co., 18 W. Va. 400. (3) There could be no such account without a count to support it But it is said that, even if the second count be treated as out of the case, the plaintiff should have recovered under the first count for goods sold and delivered, as there was no other plea than payment, which acknowledges the plaintiff's demand. This position loses its force when we see that the plea of nonassumpsit to the whole declaration was put in at the same time the demurrer was entered.

Appellants complain of the rejection of two pleas. One was a plea of res judicata, based on a judgment of a justice for some cause in favor of defendants. It is faulty because it does not in any way show that the dismissal of the suit before the justice was on the merits, so as to be a bar to a second suit; for, if it was a nonsuit, or any other of many causes not precluding another suit, it would not bar. 1 Bart. Law Prac. 534, 535; 7 Rob. Prac. 221; 1 Greenl. Ev. § 530; Burgess v. Sugg, 2 Stew. & P. 341. A plea should aver that the decision was on the merits, or it should at least appear by the record vouched. This plea does not vouch the record of the judgment or so aver.

The other rejected plea is that, in another action for the same cause before a justice, there was a submission to arbitration yet pending. The plea is bad, as not stating and describing formally the action in which the submission took place. It wants legal certainty on that point. Does it present good cause for abating this action, —that is, does the submission to...