Shafer v. Security Trust Co.
| Decision Date | 01 October 1918 |
| Docket Number | 3532. |
| Citation | 97 S.E. 290,82 W.Va. 618 |
| Parties | SHAFER v. SECURITY TRUST CO. |
| Court | West Virginia Supreme Court |
Submitted September 24, 1918.
Rehearing Denied Nov. 15, 1918.
Syllabus by the Court.
Where an amended declaration, complete in itself, does not refer to or in any manner adopt or make the original declaration a part of it, the original declaration will be considered and treated as withdrawn and abandoned.
It is improper to unite in the same declaration a cause of action sounding in contract with one sounding in tort.
A misjoinder of causes of action in a declaration is fatal on demurrer, dismissing the action, unless the plaintiff, as he may, amends so as to eliminate one or the other of the causes of action therein set forth.
Under section 15, c. 125, Code 1913 (sec. 4769), a summons served on a defendant may be amended, so as to correct a variance between it and the declaration.
A judgment non obstante veredicto must be based upon the merits of the case as disclosed by the pleadings not in any sense upon the evidence adduced thereunder. It may be applied to defeat a judgment upon a verdict predicated upon a declaration that does not state a cause of action entitling the plaintiff to recover. But in no event can it serve the purpose of a demurrer to reach a merely formally defective declaration, which but for the informality or irregularity states a good cause of action.
Error to Circuit Court, Ohio County.
Action by W. H. Shafer against the Security Trust Company. Judgment for defendant, and plaintiff brings error. Reversed, and demurrer sustained, with leave to amend.
John P Arbenz, of Wheeling, for plaintiff in error.
P. J McGinley and Jas. W. Ewing, both of Wheeling, for defendant in error.
By a motion, sustained, for judgment non obstante veredicto plaintiff was deprived of the benefit of a verdict obtained upon the trial of an issue regularly joined in an action of assumpsit containing the common counts and special counts, and was awarded this writ. He filed three declarations, the first of which was held bad upon demurrer, the second stricken from the files, and the third held sufficient upon demurrer, to each of which rulings exceptions were taken.
The last declaration has all the indicia of an independent pleading. It is complete in itself, and in no wise refers to, adopts, or makes part thereof the averments of the original or first amended declarations, and, though copied into the record, they are to be considered and treated as withdrawn or abandoned. Roderick v. Railroad Co., 7 W. Va. 54; Bartley v. Western Maryland Ry. Co., 81 W.Va. 795, 95 S.E. 443; Kinder v. Boomer Coal & Coke Co., 82 W.Va. 32, 95 S.E. 580.
This rule forbids an examination of the sufficiency of the averments of the former basic pleading. It is necessary, then, only to apply the test of sufficiency to the third declaration; that being the one upon which the issue was joined. As observed, it contains the common counts for goods, wares, chattels, and effects bargained and sold, work and services done and bestowed, and materials furnished, money loaned, money paid and expended, and received and found to be due upon settlement, each accompanied by the averments usual in such counts.
The gravamen of the two special counts is that defendants, by the wrongful representation, assumption, and pretense of authority from the owner of certain real estate, subdivided into lots, sold lots 1 and 2 of such subdivision to plaintiff at and for the price of $2,800, of which $25 was paid down and the residue was to be paid upon the tender and delivery of a deed, with the understanding and upon the agreement and on the condition that the deed was to be executed and delivered promptly, and "to contain restrictions as to outbuildings on the nearby lot numbered 3 and provisions for sewer, gas, and water connections and gutters, * * * and in full reliance upon said defendant's representations as aforesaid" for the restrictions and provisions, plaintiff purchased said lots and paid part of the consideration, and to evidence the agreement defendant executed this paper writing:
--whereby it became and was the duty of the defendant to deliver or cause to be delivered to plaintiff a deed for the two lots with the restrictions and provisions aforesaid upon the payment of the balance due on the purchase price, and that in further reliance upon such representations plaintiff tendered to defendant the said balance and demanded such a deed, which tender defendant refused to accept, and with which demand neglected and refused to comply, to the damage of the plaintiff, etc. The only material or substantial difference between the averments of the two special counts is that the latter charges...
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