Majority
p. 479Church and Demilt against Mumford. NEW YORK October, 1814.
Headnote
where a <tewdTev^ai counts, m each of which the srammm statedwasaforfioMS breach of the defendant’s a ty as an reasonable of the and diligent m?™™* con-the to support . either in promise, or whereby to ex-THIS was an action.against an attorney, for negligence, whereby the plaintiffs lost their debt. The declaration contained three counts:
1. That the defendant, in consideration that the plaintiffs , . . ^ * had retained him as their attorney, to commence and prosecute ..... . _ 1 du- a suit m the supreme court, against Burt and Babcock, for attor- large sum of money due the plaintiffs, for certain implied fees and reward, to be paid him, undertook to commence LTaa™- prosecute the said suit to judgment, in a skilful and w?s manner; but that not regarding his said promise, but Scomucon- triving, Sec., he did not commence, Sec., but, on the contrary, neglected to commence the said suit, and to prosecute it,. ....... , . .. .. torf. said suit to judgment, for a long time after ms said assumpsit, and until the said Burt and Babcock became insolvent; incompatible?” the plaintiffs not only lost their demand, but were obliged fohLf’fnNhe pay, and had paid, a large sum of money for the costs and declara- penses of prosecuting the said
demand. 2. The second count stated the retainer, as in the first, va- rying only in the amount of the demand against Burt and Bab- cock ; that the defendant, not regarding, &e., but, on the con- trary, neglected his duty as an attorney, in the prosecution of the said suit, in not causing the judgment, to be signed
p. 480contended that the declaration was bad for duplicity. The first and second counts were in assumpsit, and the third in tort; and counts on contract and on tort cannot be joined in the same declaration.
filed until December, 1809, when it might and ought to have ^een done in May, 1808; xv'hereby the plaintiffs lost their debt, and were obliged to pay, &c.
3. That the defendant, in consideration that the plaintiffs had retained him as their attorney and agent, to secure and render certain the payment of a certain demand against Burt and Babcock, for certain reasonable fees and reward, undertook and promised the plaintiffs to secure and render certain the payment of the said demand, in a prudent, skilful, and judicious manner; and that the said Burt and Babcock offered to the defendant, as the attorney and agent of the plaintiffs, good, ample, and sufficient security, which, although it was the defendant’s duty to have received, he, not regarding, Sec.,* did not, nor would accept of, nor receive security, to render certain the payment of the said demand, Sec.
To this declaration there was a general demurrer and joinder.
J5. Williams, in support of the demurrer,
Vanderlyn, contra,
insisted, that all the counts were substantially alike. The third count, like the other two, is in assumpsit. It is for a breach of duty, arising from the defendant’s promise as attorney or agent. There is no agency, nor any liability, on the part of the defendant, but what arises from a promise or undertaking, express or implied.
delivered the opinion of the court. It is, no doubt, a well-settled rule, that causes of action, founded on tort, and upon contract, cannot be joined in the same declaration; (2 Saund. 117. b. n. 1. Chittiy's Plead. 199.) and if the counts in the declaration of the plaintiffs are to be so considered, the demurrer is well taken. But that does not appear to be the case. The counts are all substantially the same, whether they are regarded as founded on tort, or in assumpsit, The gravamen alleged is a breach of duty, arising out of an employment for hire; and the same circumstances which show a breach of duty, amounting to a tortious negligence, show
p. 481
siso a breach of promise implied from the consideration of hire, A party may .generally declare in either way. Each count in this declaration contains allegations sufficient to support it, either in tort, or assumpsit. The two first counts set forth the employment of the defendant as an attorney, the consideration# And the promise or engagement on Ms part, and charges him not only with a breach of his undertaking, but with a neglect of duty as an attorney, in not commencing and prosecuting a suit against Burt and Babcock, whereby the plaintiffs lost their demand. The third count varies a little Use cause of action# and alleges, that the defendant, as attorney or agent, undertook to secure and render certain Use payment of the plaintiffs8 demand against Burt and Babcock, and a breach of such undertaking. But it also avers, that Burt and Babcock offered the defendant good, ample, and sufficient security for the payment of the demand; but that the defendant, fraudulently intending to deceive and defraud the plaintiffs, did not, and would not, accept of or receive the security. Whether the defendant is here to be considered as charged in the character of an attorney, or in that of an ordinary agent, cannot materially vary the nature of the charge. The facts set forth, if true, clearly show gross negligence, amounting to a tortious act on the part of the defendant. The material allegations in all the county are substantially the same. The plaintiffs must accordingly have judgment upon the demurrer.
Judgment for the plaintiffs-