Tripp v. Park St. Motor Corp.

• Decision Date: 01 December 1922
• Citation: 118 A. 793
• Parties: TRIPP v. PARK STREET MOTOR CORPORATION.
• Court: Maine Supreme Court

118 A. 793

TRIPP

v. PARK STREET MOTOR CORPORATION.

Supreme Judicial Court of Maine.

Dec. 1, 1922.

Exceptions from Supreme Judicial Court, Androscoggin County, at Law.

Action by A. C. Tripp against the Park Street Motor Corporation. Verdict for plaintiff, and defendant excepts. Exceptions sustained.

Argued before CORNISH, C. J., and SPEAR, DUNN, WILSON, and DEASY, JJ.

Prank A. Morey, of Lewiston, for plaintiff.

Benjamin L. Berman, of Lewiston, and Jacob H. Berman, of Portland, for defendant.

WILSON, J. The declaration in this case sets forth a "trade" involving an exchange of automobiles at an agreed value for each car and an additional payment by the plaintiff of the sum of $150 in cash, together with his promissory note for $100. It also contains an allegation that the automobile obtained by the plaintiff of the defendant in the trade was represented by the defendant to be in first-class condition, and further sets forth that the automobile received by the plaintiff was not in first-class condition, and that for this reason the plaintiff rescinded the contract of exchange and took back the automobile received by him to the defendant, and demanded back a certain Studebaker car given by him to the defendant in the exchange, also the sum paid by him in cash and his promissory note, which the defendant refused to return; whereupon the declaration concludes that the plaintiff "is entitled to receive of the defendant the sum of $200 for his Studebaker car. $150 in cash so paid, and the $100 note which represents the value of the note he gave. Wherefore an action hath accrued to the plaintiff to have and recover of the defendant the said sum of $450 aforesaid."

The defendant at the first term filed a special demurrer setting forth as the special ground of demurrer that the declaration did not allege any promise or its equivalent on the part of the defendant to pay said sum to the plaintiff. The demurrer was overruled, and, according to the bill of exceptions, the parties were directed to proceed to trial, the defendant being given the privilege of pleading over, which it refused to do, but filed its exceptions both to the overruling of the demurrer and to the order of the presiding justice directing the parties to proceed to trial. The case went to trial before a jury without any pleadings being filed by the defendant or any issue joined, and without the defendant participating therein, and verdict was rendered for the plaintiff. The case now comes before this court on the defendant's exceptions.

We think both exceptions must be sustained. The bill of exceptions agreed to by both parties describes the action as one of assumpsit, and it must be so considered. The plaintiff upon his allegations might have retained the car he received and sued on the contract for a breach of warranty, but he elected to rescind and sue to recover hack the consideration given in exchange in the form of an action of assumpsit as for money had and received. As to whether such an action will lie where the consideration paid was partly by a note, whether negotiable or not does not appear, it is not necessary to consider. Hall v. Huckins, 41 Me. 574, 578.

Without specifying other defects in the declaration which might be taken advantage of on the demurrer, it should have been sustained on the ground specified, viz. that no promise was alleged. The action of assumpsit as the derivation of the word Implies is founded on an undertaking or promise, and a promise or its equivalent must be alleged as one of the essential facts to the maintenance of such an action, whether based upon a special contract or in the common form of indebitatus assumpsit. 1 Chitty on Pleading, pp. 301, 302; Bean v. Ayers, 67 Me. 488; Brown v. Starbird, 98 Me. 292, 56 Atl. 902; Coffin v. Hall, 106 Me. 128, 75 Atl. 385; Hopkins v. Erskine, 118 Me. 276, 107 Atl. 829.

The case of Chickering v. Power Co., 118 Me. 417, 108 Atl. 460, relied upon by the plaintiff in his brief, is not in point. That was an action of tort, and the court held that to sustain that form of action it was sufficient to set out the facts from which the legal duty, relied upon by the plaintiff as a basis for his recovery, arose; that it was not necessary to set forth in terms what that duty was.

In an action of assumpsit, however, as in the case at bar, the legal obligation springs from the promise, in this case implied by law from the facts, to repay the purchase or exchange price, and not from the breach and rescission alone. The promise to repay, though implied, is as much a necessary fact to be alleged as the breach and rescission. Without such allegation, or its equivalent, which is not found in this declaration, an action of assumpsit in any form will not lie.

Having sustained the defendant's exception to the overruling of the demurrer, a disposal of the case here does not require consideration of the second exception; but the question raised by it involves a matter of procedure over which some uncertainty and confusion has arisen, viz. whether, upon exceptions being taken to the ruling on a demurrer in the Supreme Judicial Court, the case is at once marked "Law" on the docket and continued until the law court shall have passed on the issues raised by the demurrer, or whether the case shall be proceeded with it nisi prius to a verdict on the facts as though no exceptions had been taken, as in the Superior Courts and in the Supreme Court in the case of dilatory pleas. Chapter 82, R. S., §§ 58, 94.

The question raised by this exception involves the interpretation of section 36, c. 87, R. S. Notwithstanding the dicta in Wakefield v. Littlefield, 52 Me. 21, that the better practice in such cases is to proceed with the trial and settle the disputed facts before the validity of the demurrer is finally determined, the language of the statute and its legislative...