Saco Brick Co. v. J.P. Eustis Mfg. Co.
| Decision Date | 04 January 1911 |
| Parties | SACO BRICK CO. v. J. P. EUSTIS MFG. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jan. 4 1911.
Fred L. Norton, for plaintiff.
G. C Abbott, for defendant.
This is an action to recover for certain alleged breaches of a written contract entered into between the defendant and the plaintiff for the sale and purchase of a gas engine. The defendant demurred to the declaration. The demurrer was overruled and the defendant appealed. The case came on for trial upon the merits and there was a verdict for the plaintiff. The case is here on the appeal from the order overruling the demurrer and on exceptions by the defendant to certain rulings and refusals to rule by the presiding justice at the trial on the merits.
1. We think that the demurrer was rightly overruled. The grounds of demurrer relied on are that the declaration does not state concisely and with substantial certainty the substantive facts necessary to constitute the cause of action as required by Rev. Laws, c. 173, § 6, cl. 2, and that the contract contained in the written agreement was a contract not with the defendant company but with the Bruce-Merriam-Abbott Company, for which the defendant company was acting as agent. As to the second ground relied on it is disposed of, we think, by the case between the same parties, the defendant here being plaintiff there, reported in 198 Mass. 212, 84 N.E. 449, and 201 Mass. 391, 87 N.E. 596. It was expressly held in the first case that the Eustis Manufacturing Company was liable as a party to the contract, and when the case was before this court again in 201 Mass. 391, 87 N.E. 596, it was pointed out that there were provisions in the contract inconsistent with liability on the part of the Bruce-Merriam-Abbott Company, and it was held that the decree dismissing the bill was well warranted on that and other grounds. The contention of the Eustis Manufacturing Company that the contract was with the Bruce-Merriam-Abbott Company and not with it must therefore be regarded as having been settled against it. In regard to the other ground of demurrer it is to be observed that the statute does not require that in an action upon a written contract all the details contained in the contract shall be set out, but only that the substantive facts necessary to constitute the cause of action shall be stated, and that those shall be stated concisely and with substantial certainty. In the present case the declaration alleges that the plaintiff and defendant entered into a written contract, of which a copy is annexed, whereby the defendant agreed to sell to the plaintiff a gas engine, and the plaintiff agreed to pay therefor $1,750; that the defendant delivered a certain engine to the plaintiff and the plaintiff paid the defendant therefor the sum of $1,750, but that the defendant 'failed to comply with the contract in the following particulars.' Then follow allegations as to the breaches complained of, and the declaration concludes with averments in regard to the damages sustained by the plaintiff. The cause of action is clearly stated and the breaches relied on are distinctly set forth. According to the express terms of the statute the plaintiff could include any number of breaches in the same count (Rev. Laws, c. 173, § 6, cl. 4), and it was not confined to one form of statement in regard to any particular breach alleged, but could state it in the alternative in different ways. If, according to the true construction of the contract, breaches were improperly assigned, they could be demurred to specifically without demurring to the declaration as a whole. Montague v. Boston & Fairhaven Iron Works, 97 Mass. 502. No such ground of demurrer was, however, alleged.
2. In its answer the defendant set up by way of equitable defense that it was intended and understood by and between the plaintiff and defendant that the contract should be and was between the plaintiff and the Bruce-Merriam-Abbott Company and that the contract ought not in equity to be enforced against the defendant. The first exception taken by the defendant at the trial was to a ruling made by the presiding justice at the request of the plaintiff that 'the equitable defense was res adjudicata; and that it was not open to the defendant in this action, and that no evidence could be introduced in support of it.' We think that the ruling was right. The ground now set up by way of equitable defense to the present action was that on which equitable relief was sought by the defendant in the suit already referred to and the decree in that case which was against the defendant must be regarded as disposing once for all of the contention whether made the ground of affirmative or defensive relief or advanced at law or in equity. The remedy was concurrent at law and in equity, but having elected to pursue the remedy in equity the defendant is bound by its election. New York, New Haven & Hartford R. R. v. Martin, 158 Mass. 313, 315, 33 N.E. 578; Nash v. D'Arcy, 183 Mass. 30, 31, 66 N.E. 606. The fact that this action was begun before the action reported in 198 Mass. 212 84 N.E. 449, and 201 Mass. 391, 87 N.E. 596, did not prevent the plaintiff from setting up the judgment in that case as a bar to the equitable defense which the defendant sought to introduce in this case. The judgment could have been pleaded by the plaintiff by way of replication to so much of the defendant's answer as sets up the...
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