Goodrich v. Alfred , 72 Conn. 257 ( 1899 )

The order striking the first "substituted complaint" from the files could furnish no ground of appeal after the second "substituted complaint" had been put in.Goodrich v. Stanton, 71 Conn. 418, 424.

The latter was filed by consent, but the consent manifestly referred only to its being received after the regular time fixed by the rules of court.

It sets up a claim for money due to one Beulah Shanley, for goods sold and delivered to the defendant, and states that this claim was assigned before the bringing of the action by her to the plaintiff, in trust for her husband, of which the defendant had due notice.

The cause of action originally declared on was a sale to the defendant by the plaintiff. That stated in the second substituted complaint was a sale to the defendant by a third party, who had not been paid the full purchase money, and had assigned his claim for the balance due to the plaintiff, who, after due notice to the defendant, had demanded payment and met with a refusal.

A cause of action consists of a right belonging to the plaintiff, which has been violated by some wrongful act or omission of the defendant. Wildman v. Wildman, 70 Conn. 700,708. Had Beulah Shanley brought this suit, that part of the common counts relative to sales would have been an appropriate general statement of the nature of her demand; but it was not an appropriate general statement of the right of one to whom she had assigned her claim, and of the violation of this right by a refusal to make payment to him. The plaintiff's use of the common counts was therefore unwarranted by the rules under the Practice Act, and could not be helped out by allowing him to file a supplemental complaint for a wrong of which his original complaint contained no suggestion. Practice Book, p. 12, Rule II, § 1.

The defect in the proceedings inhered in their origin, and was substantial. The "common counts" of the Practice Book would be demurrable, except for the provision in the rules of court to the contrary. New York Breweries Corporation v. Baker, 68 Conn. 337, 343. Whoever uses them does so at the peril of failing in his action, unless one or more of them were appropriately used as a general statement of his cause of action. If his bill of particulars, or amended complaint, shows on its face that this is not the case, a motion to strike it from the files is the appropriate remedy. A demurrer addresses itself to a pleading which (however defective or insufficient it may be) is properly in court.

It is to be observed that no motion was made for a change in parties.

The parties to a suit are made by the writ or process, not by the complaint or pleading. Had the plaintiff sought leave to amend his writ by adding to the name "William H. Goodrich," the words "trustee for John W. Shanley," and then his complaint by alleging that he was, as such, the actual,bona fide owner of the claim of Beulah Shanley, a different question might have been presented. General Statutes, §§ 886, 889, 981; Merwin v. Richardson, 52 Conn. 223, 235;McDonald v. Ward, 57 id. 304.

It is contended that as the assignee of a non-negotiable chose in action can, under certain circumstances, sue in his own name on the common counts for money had and received, the same rule should apply to a demand for goods sold and delivered. This claim overlooks the distinction between suing on a contract, and suing on a subsequent transaction flowing from the contract. Thus the assignee of a non-negotiable note, by our common law, must sue on it in the name of the payee, but if the maker has paid it to a third party, who claimed to be the owner, can bring suit in his own name against the latter. Camp v. Tompkins, 9 Conn. 545,552. In the case at bar the demand is by the assignee of the right of action for the purchase price of goods sold and the breach of a special contract.

Ample time having been allowed after the supplemental complaint had been stricken out, for filing any other proper statement of the plaintiff's claim, and none having been presented, there was no error in granting a nonsuit. Practice Book, p. 16, Rule IV, § 1.

It was not, however, a judgment rendered by consent. By the statement of the plaintiff's counsel that he had no objection to its entry, obviously no more was meant than that as the substituted complaint had been struck from the files, and that set forth his real case, a judgment against his client was the only logical conclusion to which the court could come from the premises which it had adopted. Those premises being correct, the judgment must stand.

There is no error.

In this opinion the other judges concurred.