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Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co.

Co., 26 id., 219, 224; Havens v. H. & N. H. R. R. Co., 28 id., 86; Taylor v. Knapp, 25 id., 514.

In Holly v. Brown, 14 Conn., 255, 267, 268, the rule is thus stated: "And even where distinct causes of action are embraced in the same count, provided they be such that the same species of remedy is appropriate to them all, although it may constitute duplicity in pleading and in that respect be objectionable, yet if the defendant does not take advantage of the objection by special demurrer, he waives the objection and must be prepared to meet all the charges; and if the plaintiff substantiates any of them, he will be entitled to recover." vens v. H. & N. H. R. R. Co., 26 Conn., 220; Oviatt v. Pond, 29 id., 479, 485; Church v. Meeker, 34 id., 421, 422; Andrews v. Thayer, 40 id., 156, 158.

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The law in respect to this question has not been changed by the Practice Act, Rule IV, § 13. Sprague v. Taylor, 58 Conn., 542; Bassett v. Shares, 63 id., 39, 42; Blossom v. Barrell, 37 N. Y. 434, 436; Van Loan v. Willis, 13 Daly, 231; Commercial Bank v. Pfeiffer, 22 Hun, 336; Scott V. R. R. Co., 68 Iowa, 560; Conyers v. R. R. Co., 78 id., 410.

The New York code provides as to joinder of causes of action, "that they must be consistent." Code Civil Procedure, § 484. No such provision exists in our Practice Act. The New York and also the Wisconsin cases on this subject are criticised in Bliss on Code Pleading, §§ 290, 291, 292, 293 and notes.

The courts in California and Kentucky take a different view. Thus in Mills v. Barnett, 22 Cal., 240, the plaintiff set up in his complaint two causes of action; first, that he had paid certain money by mistake, and second, that the defendant had warranted the genuineness of the indorsement of the note for which the money in question had been paid. No preliminary objection was taken to the complaint, and the court held that the complaint was sufficient. In its opinion the court says:

"Either would constitute a good cause of action, and it does not make the complaint insufficient because they have two grounds of recovery instead of one." See also Jones v.

Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co.

Steamship Cortez, 17 Cal., 487; Noel v. Hudson, 13 B. Monroe (Ky.), 204.

In New York the cases are by no means in harmony. Thus in Whitbeck v. Kehr, 10 Daly, 403, 405, it was held that:

"When the facts stated in the complaint may constitute a cause of action for conversion or contract, but are alleged as a single cause of action only, and no motion is made before the trial to have the two causes of action stated separately, the court should not on the trial compel the plaintiff to elect."

If the plaintiff had submitted to the ruling of the court below, and made its election, the result might show by the verdict of the jury that it had elected wrongly. The plaintiff might have lost its case, although it had another cause of action which was good and just, but it could not take advantage of it, for the reason that it would be bound conclusively by its election. Turner v. Davis, 48 Conn., 400, Whitside v. Brawley, 152 Mass., 133, 135; Connihan v. Thompson, 111 id., 270; Butler v. Hildreth, 50 Metc. 49; Moller v. Tuska, 87 N. Y., 166.

III. The court had no power to make the order in question. The rule giving the Superior Court power to grant nonsuits and defaults upon noncompliance with an order does not rest in the court as an arbitrary and uncontrolled power in this respect. The rule must mean that the power to nonsuit or default is granted only in case when the order is a proper and lawful order, for otherwise the court might order a plaintiff or defendant to pay the adverse party a certain sum of money, without a trial, and if he refused so to do might order a nonsuit or default, as the case might be, but such a result would be abhorrent to the first principles of justice. It would encourage and foster incalculable evils, and in its operation necessarily tend to debase the administration of the law.

In Schoonmaker v. Albertson & Douglass Mach. Co., 51 Conn., 387, it was held that the refusal of the court below

Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co.

to open a judgment by default might be reviewed when the refusal was based on an erroneous application of the law.

The same rule ought to be applied to judgments of the kind here in question.

IV. If, however, the court below had power under the circumstances of this case to make in its discretion the order in question, which we deny, we say that it did not exercise a sound discretion in the matter. The complaint certainly stated a good cause of action of some kind. We claim that we had already proved a prima facie case upon which we had the right to go to the jury. The court ought, therefore, to have construed the complaint if it was ambiguous, or if necessary, ordered us to amend, and submitted the case to the jury on the complaint as interpreted or as amended. It did neither. It took the case away from the jury and dismissed the complaint. Such a course could not be productive of any good result. It was harsh, oppressive and arbitrary.

William C. Case and William H. Ely, with whom was Edmund Zacher, for the appellee (defendant).

It is not clear how the ruling of the court, that an action founded on a tort could not be joined with an action founded on contract in one count has injured the plaintiff, for the ruling was not obeyed. Assuming for the time, however, that the plaintiff has a right to have the question of pleading and evidence reviewed by this court, we submit that the ruling of the court was correct.

I. The plaintiff's claims were inconsistent in that it claimed that the machines belonged to the defendant, and therefore the plaintiff was entitled to recover, and also claimed that the machines belonged to the plaintiff, and therefore it was entitled to recover.

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"It is an elementary principle that a plaintiff shall not claim by inconsistent remedies or in inconsistent rights." Pott's Appeal, 5 Pa. St., 502. "Precedent has established the wholesome principle that distinct remedies cannot be used concurrently or alternately unless they are consistent, not only in purpose but in kind." Ib., p. 503. This rule

Craft Refrigerating Machine Co. v. Qninnipiac Brewing Co.

is recognized and enforced in Stewart v. Huntington, 124 N. Y., 127; Barndt v. Frederick, 78 Wis., 1; Plummer v. Mold, 22 Minn., 15; Moller v. Tuska, 87 N. Y., 166-9. The right of the pleader to set out the facts on which he relies, given him by the Practice Act, does not affect this question. The question here is whether he has a right to be inconsistent in his claims. Turner v. Davis, 48 Conn., 397-400; Clapp v. Cawpbell, 124 Mass., 50. Clearly the defendant was entitled to an order compelling the plaintiff to elect.

II. The court certainly had the discretionary power to pass this order even if the defendant was not entitled to it and the plaintiff has no reason to complain. Plummer v. Mold, 22 Minn., 15; Hawley v. Wilkinson, 18 id., 525; Rhodes v. Pray, 36 id., 393.

III. The plaintiff by its course had already elected to claim under the contract, and having made the election could not claim under the tort.

Having claimed that a certain course of action on the part of the defendant affirmed the contract, and having announced that it should treat the contract as affirmed, with full knowledge of all the facts, the plaintiff could not afterwards rescind it. "It was bound by its affirmation." Bulkley v. Morgan, 46 Conn., 393-395; Dinsmore v. Duncan, 57 N. Y., 580.

The court would have been justified in going even further than it did, and had it refused to hear any testimony to sustain the claim of conversion the ruling should have been sustained.

IV. But the plaintiff is not in a position to have this question reviewed, for it asks this court to sustain it in disobedience, by saying that the court below erred. If the ruling was erroneous plaintiff had its remedy, and any wrong it suffered on account of the ruling would have been remedied. It was its first duty to obey and to seek the remedy provided by law, and not to defy the court below and ask this court to sustain it in its defiance.

The rules of the court provide: "If a party fails to comply with an order or rule he will be nonsuited or defaulted."

Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co.

Rules of Court, Rule 5, p. 28. The ruling and order were passed, the plaintiff failed to comply, and because of his failure was nonsuited. Under the rule the Superior Court had no alternative.

BALDWIN, J. Complaints under the Practice Act are to "contain a statement of the facts constituting the cause of action." General Statutes, § 872. This is to be "a plain. and concise statement of the material facts on which the pleader relies." General Statutes, § 880. "Acts and contracts may be stated according to their legal effect," (Practice Book, p. 14, Rule III, sec. 1,) and "the plaintiff may claim alternative relief, based upon an alternative construction of his cause of action." (Id., p. 13, Rule II, § 9.) Several causes of action may be united in the same complaint, if all are "upon claims, whether in contract or tort or both, arising out of the same transaction or transactions connected with the same subject of action; "but they must be separately stated," and "if it appear to the court that they cannot all be conveniently heard together, the court may order separate trials of any such causes of action, or may direct that any one or more of them be expunged from the complaint." General Statutes, § 878. "Transactions connected with the same subject of action may include any transactions which grow out of the subject-matter in regard to which the controversy has arisen; as, for instance, the failure of a bailee to use the goods bailed for the purpose agreed, and also an injury to them by his fault or neglect." Practice Book, p. 15, Rule III, § 7. Where separate and distinct causes of action (as distinguished from separate and distinct claims for relief, founded on the same cause of action or transaction,) are joined, "the complaint is to be divided into separate counts." Practice Book, p. 12, Rule II, § 4. Any exception for misjoinder of causes of action, whether in the same or separate counts, must be taken by demurrer, and if not so taken will be deemed to be waived. Practice Book, p. 17, Rule IV, § 13.

These various statutory provisions and rules of court are

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