Gooding agt. M'Alister, 9 How. Pr. 123

Welles, Justice. The complaint contains two counts or statements of causes of action, and the demurrer is to the one first stated and set forth. The demurrer must, therefore, he examined and decided the same as if there was no other count than that to which it refers. The objection alleged to this count is that it contains two distinct causes of action, the one equitable and the other legal. If this were so, I do not think a demurrer will reach the objection.

If a plaintiff in an attempt to present a single and entire cause of action in one count or statement, misjudges, and in fact spreads out two or more good causes of action, when he supposed he had, and only claimed one, in my opinion the most simple and appropriate way for the defendant to take advantage of it is, to move to have all but one struck out of the complaint as redundant.

On such motion, the court would not grant the motion to strike out unless it appeared entirely clear that the count did in fact contain more than one good and complete cause of action, and would probably in that case, upon such terms as should be just, allow the plaintiff to amend by severing the statements so as to appear in form, to contain the different causes of action in conformity with the principles stated in the opinion of Justice Selden, in Benedict agt. Seymour, (6 How. Pr. R. 298,) to which I fully subscribe.

The defendant’s counsel insists that the Code (§ 144, sub. 5) allows a demurrer for such cause. That

section enumerates six causes for which a defendant may demur to the complaint, and the 5th is, “ That several causes of action have been improperly united.”

Section 167 shows what causes of action may be united in the same complaint, and those that may be so united are required to be separately stated. Suppose, in a case where several causes of action are united in one complaint, and they are such as the

section last referred to allows to be united in the same complaint, hut they are not separately stated; would such omission subject the complaint to a demurrer 1 The causes of action thus stated are properly united in the complaint, and the only difficulty is, they are not separately stated. The objection which subdivision 5 of § 144 allows to be taken by demurrer, it seems to me, must be something which amounts to a violation of § 167, providing what causes of action may be' united in the same complaint. Subdivision 5 of § 144 allows a demurrer, where several causes of action are improperly united.

That several such causes which may be so united, are not separately stated, is not among the objections for which, by the last-mentioned section, the defendant may demur. In Durkey and others agt. The Saratoga and Washington R. R. Co. (4 How. Pr. R. 226,) Mr. Justice Willard adopted a different construction of ^ 144, holding that the language of subdivision 5 of that

section referred to causes of action improperly united in the same count or statement. He rests the argument principally upon the concluding words of § 16V, “ and must be separately stated.” He seems to me to have lost sight of the language in the former part of the section, which allows the plaintiff to unite in the same complaint several causes of action. Several causes of action may be united in one complaint, and although not separately stated, still, they are properly united in the complaint.

That is to say, it is no objection, that they are united in the same complaint, but the objection is that they are not separately stated. They may be properly united, but improperly stated. I shall of course be understood to refer to causes of action which by § 16V may be united in the same complaint. It was a misjoinder of causes of action, which was intended by subdivision 5 of ^ 144 to be a ground of demurrer to the complaint.

What I mean by a misjoinder is, the union in one complaint of- causes of action .not allowed, by § 16 V, as for example, a cause of action upon a contract with one for an injury to the person. I am constrained, therefore, for the reasons stated, to differ from the learned justice and able jurist to whose opinion I have last referred, and to hold that under the Code a demurrer will in no case lie for duplicity, and that the only mode for a party-to avail himself of such objection is by motion to strike out or to compel the party to elect.

The foregoing views, it will be perceived, are only applicable to the present case, upon the assumption that the count demurred to, does, in fact, contain more than one cause of action. I am, nevertheless, entirely satisfied upon a deliberate examination of the count in question, and upon consideration of the authorities upon the subject, that it contains but one cause of action. The case made by it is purely of equitable cognizance.

The object is to have a written contract reformed on the ground that, as alleged, a material part of the agreement was by mistake omitted, and when so reformed and made to express the agreement intended by the partie.s to it, to have it enforced against the defendant, as it shall stand reformed. That such a case, when properly established by evidence, is a proper subject of equitable jurisdiction, is now well settled. (Story’s Eq. Jur. § 157 to 161 inclusive;) Gillespie agt. Moon, (2 Johns. Ch. R. 585;) Keisselbrack agt. Livingston, (4 Johns. Ch.

R. 144.) It was proper for the plaintiff to invoke the equitable power of the court to correct the mistake in the written contract, and in the same count or statement to allege the violation by the defendant of the actual agreement, and then demand judgment for such relief as his case, when proved, would entitle him. On the hypothesis of such mistake, it was the only way he could frame his case so as to entitle himself to full relief. It is true the ultimate relief he needs, upon his own showing, is payment for the pelts delivered at the price agreed upon.

But this he may not be, and 'probably is not entitled to, by virtue of the agreement as reduced to writing, which at law would be conclusive upon the parties, whatever the previous agreement was between them, and which they intended to have embodied in the writing, until it is reformed, so as to express the true agreement of the parties.

Admitting that the plaintiff could recover, aside from the contract, for the pelts actually delivered by the plaintiff, and received by the defendant, still he could not demand the contract price, although it might be his interest to do so, without showing performance on his part, which he could not do, as the contract now stands written, provided he has availed himself of the reservation or exception, which he alleges was a part of the agreement as made, and which was omitted by mistake to be inserted in the agreement, as reduced to writing.

Having presented a case of equity jurisdiction exclusively with a view to the reformation of the written agreement, it is no objection to the practical relief which he seeks, that it could be given in a court of law or according to the principles of the common law, upon the contract after it shall be reformed. It would be a reproach to the administration of justice to turn the party over to another tribunal, or to another form of action in the same tribunal, to obtain the relief, which he was obliged to appeal to its equitable jurisdiction in order to be put in a condition to ask for.

The rule, with respect to a court of equity is, that the jurisdiction, having' once attached, it shall be made effectual for the purposes of complete relief. (Story Eq. Jur. § 64, k. and 65.) I am accordingly of the opinion that the plaintiff should have judgment on the demurrer, unless the defendant pays costs and answers the count demurred to in twenty days.