Willard v. Carrigan

• Decision Date: 19 March 1902
• Docket Number: Civil 771
• Parties: G. M. WILLARD et al., Defendants and Appellants, v. ALFRED CARRIGAN, Plaintiff and Appellee
• Court: Arizona Supreme Court

68 P. 538

8 Ariz. 70

G. M. WILLARD et al., Defendants and Appellants, v. ALFRED CARRIGAN, Plaintiff and Appellee

Civil No. 771

Supreme Court of Arizona

March 19, 1902

APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Yavapai. R. E. Sloan Judge. Affirmed.

The facts are stated in the opinion.

Herndon & Norris, for Appellants.

Robert E. Morrison, Thomas C. Job, and W. C. Campbell, for Appellee.

OPINION

STREET, C.J.

-- Alfred Carrigan brought his action against the appellants and R. L. Van Deren and Etta Willard, defendants, to recover the sum of ten thousand dollars as commission for the sale of mining properties. Findings of fact and judgment were for the plaintiff. The defendants G. M. Willard, W. W. Nichols, and M. A. Carrier appeal from such judgment.

Plaintiff's complaint contained two counts. The first count alleged "that the defendants made and entered into an oral contract with plaintiff, whereby he undertook to act as a broker in procuring a purchaser for all said claims; and in consideration of his services in that behalf to be performed the defendants herein promised and agreed to and with him," etc. The second count alleged "that plaintiff, at the special instance and request of defendants performed certain services as a broker for them in and about procuring a purchaser for certain mining property; . . . that said services were reasonably worth the sum of $10,000," etc. Before trial, defendants moved the court to require plaintiff to elect upon which of the two causes of action set up in his complaint he would rely on for a judgment, because it appears that said two counts are a double statement in different form of the same cause of action; one being upon an express contract for a fixed amount, the other upon quantum meruit for services rendered. The statute of Arizona (par 1280), like the statutes of other states covering code pleadings, provides, "The complaint may contain several different causes of action." It also provides (par. 1289): "The complaint shall set forth clearly the names of the parties, a concise statement of the causes of action, without any distinction between suits at law and in equity, and shall also state the nature of the relief which he demands." It also provides (par. 1291) "Only such causes of action may be joined as are capable of the same character of relief." The term "different causes of action" implies as many distinct causes of action as are held or claimed to be held by the plaintiff. At common law it was permissible to state the same cause of action in as many different ways as the pleader chose, and each method was called a count. In a general way, under our statute and under the code system, the plaintiff who has but one cause of action will not be permitted to plead it as though he possessed two or more distinct demands. This rule, however, is not inflexible; it must yield to the demands of justice and equity. "Under peculiar circumstances, when the exact legal nature of the plaintiff's right and the defendant's liability depend upon facts in the sole possession of the defendant, or upon facts which will not be developed until the trial, the plaintiff may set forth the same single cause of action in varied counts, and with differing averments, so as to meet the possible proofs which will for the first time fully appear on the trial." Pomeroy on Remedies, par. 576. In the case of Wilson v. Smith, 61 Cal. 209, the complaint there contained two counts; one alleging a promise to pay, and the other alleging a quantum meruit. Before the introduction of evidence the defendants moved the court to require the plaintiff to elect upon which count he would proceed. The court denied the motion. The supreme court said: "We cannot say the ruling was erroneous. Under our code, which provides that the complaint must contain a statement of facts constituting the cause of action in ordinary and concise language, the plaintiff may set them out in two separate forms when there is a fair and reasonable doubt of his ability to safely plead them in one mode only." In the case of Leeke v. Hancock, 76 Cal. 127, 17 P. 937, the complaint was on the first count for money paid, laid out, and expended, on the second count for money lent, and on the third count for money had and received; each count being separately stated. The prayer was for the sum alleged in each count. The court found "that the plaintiff laid out and expended for the use and benefit," etc., and failed to find upon the issues made by the averments of the other counts and the denials thereof. The finding and judgment of the first count was held to be a finding and judgment against the plaintiff upon the other counts. The court said: "Clearly, in ordinary cases, there must be a distinct finding upon each material issue. But in a case like the present the prayer may be referred to as illustrating the scope of the action, and here the prayer clearly indicates that the counts are in the alternative, the same cause of action being stated in different forms." The court further stated that the right to rely upon a common count has been settled by the earlier decisions in that state. In the case of Remy v. Olds (Cal.) 34 P. 216, the complaint contained two counts; one for damages on a contract, and the other to recover materials furnished, etc. The defendants requested the court to require plaintiff to elect upon which count or cause of action he would rely, and that thereupon the other cause of action be dismissed. This the court refused to do, and the ruling is assigned as error. In that case the court said: "Conceding that this is an action in which the same cause of action is differently stated in two separate counts, still I think the ruling correct. The right to so plead is well established here. [Citing cases from the supreme court of California.] Since it is allowable to state the cause of action in the alternate, using different counts in order to meet any possible phase of the evidence, a party cannot be deprived of the privilege by being compelled to strike out all causes of action save one before the trial commences. It would render the privilege a barren one." In the fifth volume of the Encyclopedia of Pleading and Practice (p. 324) it...