Grimshaw v. Woolfall — 40 N.Y. St. Rep. 299

Majority

p. 299

Robert Grimshaw, Pl’ff, v. Frederick Hartley Woolfall et al., Def’ts.

(New York Common Pleas, Special Term,

Filed October, 1891.)

Headnote

1. Pleading—Joinder of actions.

It is not a misjoinder of actions because one is ex contractu and the other" ex delicto, provided both arise out of the same transaction, or transactions, with the same subject of action.

2. Same—DeIiurrer.

Where a demurrer is interposed to two alleged causes of action jointly, on the ground of not setting forth facts sufficient to constitute a cause of action, such demurrer must fail if one of the alleged causes be sufficient, though the other be insufficient.

Demurrer to complaint.

The demurrer is interposed on two grounds : First, that of misjoinder of causes of action, and secondly, on the ground that the complaint fails to state facts sufficient to constitute a cause of action.

James T. McMahon, for pl’ff; James A. S. Gregg, for def’ts.

There may be judgment upon the demurrer for the plaintiff, with costs, with leave to defendants to answer within twenty days, upon the payment of costs.

Assuming that the complaint sets out two valid causes of action, it is not a misjoinder of actions because one is ex contractu and the other ex delicto, provided both arise out of the same transaction, or transactions, with the same subject of action. Code Civ. Pro., § 484, sub. 9; Robinson v. Flint, 16 How. Pr., 240 ; Badger v. Benedict, 4 Abb. Pr., 176 ; aff’d 1 Hilt., 419 ; Rothchild v. G. T. R. R. of Canada, 19 Civ. Pro. R., 54; 30 N. Y. State Rep., 642; Bliss on Code Pleading, § 125; Boone Code Pleading, § 37; Lawson’s Rights, Remedies and Practice, Vol. 7, § 3471.

The assignment of the claim for damages growing out of the defendants’ alleged breach of contract vested the legal title thereto in the plaintiff, and he is thereby authorized to maintain an action to recover the same. As the defendants are in no wise interested in the execution of the trust, they cannot avail themselves of the objection that the assignment to the plaintiff constituted a breach of trust by the assignors. Nelson v. Eaton, 26 N. Y, 411 .

The first alleged cause of action sets out, with sufficient clearness, the making of the contract between plaintiff’s assignors and defendants, performance by plaintiff’s assignors and refusal or neglect by defendants to perform. These facts, in the absence of proof of substantial damage, entitle plaintiff to recover at least a nominal sum, as the law assumes that the breach of a contract has resulted in some loss or damage to the party aggrieved. Sedgwick on the Measure of Damages, § 51; Wood’s Practice Evidence, 194, § 71; Bailey’s Onus Probandi, etc., 69; Gould

p. 300

ing v. Hewitt, 2 Hill, 644 , 647. And a general averment of damage in an' action to recover the damages which naturally flow from the breach is sufficient. Bliss on Code Pleading, § 297a; Boone on Code Pleading, § 140.

The demurrer having been interposed to both causes of action jointly, and not to each separately, it is unnecessary to inquire whether or not the second alleged cause of action is sufficient. The first is so, and though the second is not sufficient, the demurrer must fail. Hale v. Omaha Nat. Bank, 49 N. Y., 626 ; Swords v. Northern Light Oil Co., 17 Abb. N. C., 115 ; Wheeler v. Conn. Mut. Life Ins. Co., 82 N. Y., 543 , 555.