Webb v. Litz

• Decision Date: 20 May 1958
• Docket Number: 3 Div. 14
• Citation: 102 So.2d 915,39 Ala.App. 443
• Parties: Hugh WEBB, d/b/a Webb Insurance Company v. Boyd E. LITZ.
• Court: Alabama Court of Appeals

Page 915

102 So.2d 915

39 Ala.App. 443

Hugh WEBB, d/b/a Webb Insurance Company v. Boyd E. LITZ.

3 Div. 14.

Court of Appeals of Alabama.

May 20, 1958.

Thos. W. Sullivan, Montgomery, for appellant.

Ballard, Ballard & Akers, Montgomery, for appellee.

CATES, Judge.

This is a civil action at law based upon Webb's complaint reading as follows:

'The Plaintiff claims of the Defendant the sum of Four-hundred and Eighty-nine and 75/100 ($489.75) Dollars, for that on to-wit: August 9, 1955, the Defendant did purchase from the Plaintiff one 1954 Volks Wagon automobile, Motor No. 10801-853, and did enter into a conditional sales contract for the payment of said automobile, payable at the rate of Seventy-Five and 00/100 (75.00) Dollars per month; that thereafter the Defendant did default in said payments and it became necessary for Plaintiff to repossess said automobile and that as a result of Defendant's breach the Plaintiff was forced to sell said automobile upon the open market to his loss as aforesaid.

'Plaintiff further avers that one of the conditions in said conditional sales contract is that the Defendant shall pay a reasonable Attorney's fee should it become necessary to employ an attorney, and Plaintiff claims an additional One-hundred and twenty-two and 43/100 ($122.43) Dollars as attorney's fees.

Count II

'Plaintiff claims of the Defendant the sum of Six-hundred and Twelve and 18/100 ($612.18) Dollars due from him on account on the 5th day of December, 1955; which sum of money with interest thereon, is still due and unpaid.'

To this complaint as a whole, Litz demurred and separately and severally to each count thereof. We treat the demurrer as being sufficient to point out the defect in Count 1 which we shall discuss later. On November 2, 1956, the Circuit Court of Montgomery County entered an order sustaining the demurrer in toto, whereupon the plaintiff declined to plead further and moved for a nonsuit. A judgment of dismissal was entered against him with leave to appeal to this court.

One of the complainant's assignments of error is that Count 2 of the complaint is in statutory form as prescribed by Code 1940, T. 7, § 223, No. 10, and, therefore, not subject to objection by way of demurrer.

At common law, pleading commenced with the execution of a writ after which the plaintiff was given a certain time, usually three days after the commencement of the term at which the writ was returnable, to file his declaration. Cf. Toulmin's Digest, T. 36, Ch. I, p. 453, § 31, Ch. XXIV, p. 476, § 7; Aiken's Digest, p. 276, § 104.

This seems to have been the system that prevailed in Alabama up until 1852 when the Legislature undertook, by the Code of that year, to alter much of the manner and form of pleading and practice at law, so that in § 2160 of the 1852 Code we find that an action at law is commenced by the service of a summons, to which a copy of a 'complaint' was required to be attached. This in lieu of the common law 'declaration.' With the 1940 Code the 'filing' of the originating summons with a complaint attached rather than 'service' became the point of beginning of an action.

The use of the so-called common counts as an addition to counts based on assumpsit is familiar to all practitioners. Stephen, whose first and second editions of the Principles of Pleading were published before any of the English pleading reforms of 1833-34 and accordingly are our best Encyclopedic text of what was the English common law on July 4, 1776, says (in 2nd Ed.--Tyler, American Editor) at pp. 258-261:

'* * * it happens more frequently than otherwise that, when various counts are introduced, they do not really relate to distinct claims, but are adopted merely as so many different forms of propounding the same cause of action, and are therefore a mere evasion of the rule against duplicity. This is a relaxation of very ancient date, and has long since passed, by continual sufferance, into allowable and regular practice. It takes place when the pleader, in drawing the declaration or bill in any action, or in preparing the praecipe for an original writ in trespass, or trespass on the case, after having set forth his case in one view, feels doubtful whether, as so stated, it may not be insufficient in point of law, or incapable of proof in point of fact; and at the same time perceives another mode of statement, by which the apprehended difficulty may probably be avoided. Not choosing to rely on either view of the case exclusively, he takes the course of adopting both; and accordingly inserts the second form of statement in the shape of a second count, in the same manner as if he were proceeding for a separate cause of action. If, upon the same principle, he wishes to vary still further the method of allegation, he may find it necessary to add many other succeeding counts besides the second; and thus, in practice, a great variety of counts often occurs in respect of the same cause of action; the law not having set any limits to the discretion of the pleader, in this respect, if fairly and rationally exercised.

'It may be desirable, however, to explain more particularly in what case, and with what objects, resort is had to several counts in respect of the same cause of action. This may happen either where the state of facts to which each count refers is really different, or where the same state of facts is differently represented. * * *

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'* * * But it more frequently happens that it is the same state of facts differently represented which forms the subject of different counts. Thus, where a man has ordered goods of another, and an action is brought against him for the price, the circumstances may be conceived to be such as to raise a doubt whether the transaction ought to be described as one of goods sold and delivered, or of work and labor done; and, in this case, there would be two counts, setting forth the claim both ways, exactly as in the two first counts of the last example, in order to secure a verdict, at all events, upon one of them. And it may be useful to observe here that, upon this principle, the four last counts of that example, viz, those for money lent and advanced, money paid, money had and received, and money due on account stated, (commonly called the money counts,) are, some or all of them, generally inserted, as a matter of course, in every praecipe, declaration, or bill in assumpsit, though the cause of action be also stated in a more special form in other counts. This is done because it often happens that, when the special counts are found incapable of proof at the trial, the cause of action will resolve itself into one of these general pecuniary forms of demand, and thus the plaintiff may obtain a verdict on one of these money counts, though he fail as to all the rest. Again, the same state of facts may be varied, by omitting, in one count, some matter stated in another. In such a case the more special count is used, lest the omission of this matter should render the other insufficient in point of law. The more general count is adopted, because, if good in point of law, it will relieve the plaintiff from the necessity of proving such omitted matter in point of fact. If the defendant demurs to the latter count as insufficient, and takes issue in fact on the former, the plaintiff has the chance of proving the matter alleged, and also the chance of succeeding on the demurrer. If, on the other hand, the defendant does not think proper to demur, but takes issue in fact on both, the plaintiff will have no occasion at the trial to rely at all upon the former count, but will succeed by merely proving the latter.'

A complaint under our present law, as might the common law declaration before it, may contain one or more counts arising out of the same transaction, provided the defendant be not 'twice charged for the same thing.' Chitty on Pleading (16th Am.Ed.) p. 429; West v. Toles, Salk. 213, so that we find:

'* * * The several counts of a declaration are regarded as its different parts or sections * * * and in framing it, unnecessary repetition should be avoided. This may be done by the counts referring to each other; but unless such reference is made, one count will not be aided by another; 'for though both counts are in the same declaration, yet they are as distinct as if they were in separate declarations; and consequently, they must independently contain all necessary allegations, or the latter count must expressly refer to the former.' * * *' Mardis' Adm'rs v. Shackleford, 6 Ala. 433.

'If, however, there is not an express reference, the several counts are considered as distinct as if contained in separate declarations. * * *.' Robinson v. Drummond, 24 Ala. 174.

'* * * Under our system of pleading the several counts of the complaint are considered separate and distinct, and to be tested for their sufficiency by the averments thereof without reference to any other count, * * *.' Paterson & Edey Lumber Co. v. Carolina-Portland Cement Co., 215 Ala. 621, 112 So. 245, 250.

Code 1940, T. 7, § 219, reads:

'All actions on contracts, express or implied, for the payment of money, whether under seal or not, though some may contain a waiver of the right of exemption and others not, may be united in the same action, and the issues may be determined separately by the jury under the direction of the court, and the costs fairly apportioned.'

The practice under this section was well elucidated by this court in Abraham Bros. v. Means, 16 Ala.App. 429, 78 So. 459, 460, wherein the opinion reads:

'The cause was tried on two counts; count 2 claiming for a breach of warranty, and count 3 for money had and received. There was nothing to indicate that the claims as set out were for inconsistent remedies growing out of the same transaction. The complaint therefore was not subject to demurrer on that ground. Code 1907, § 5328. Issue being joined on both counts, and there being evidence tending to sustain...