Spencer against Curtiss, 15 Conn. 56

Waite, J. The only question submitted to our consideration in this case, is, whether the third count in the declaration is sufficient to entitle the plaintiff to judgment upon it in his favour. And that depends upon the question whether the allegations respecting the contract with Jabez G. Curtiss, and the making and delivery of the writing set out, so vitiate the count as to preclude a recovery ; or, whether those allegations may be rejected as surplusage.

It is averred, that in consideration that the plaintiff would sell and deliver to one Sage a certain quantity of cheese, the defendant promised, if Sage failed to pay for the same within a specified time, he would become responsible, and would pay for the same. The plaintiff then avers a delivery of the cheese, the non-payment by Sage within the time, notice to the defendant, his consequent liability and promise to pay, and the non-fulfilment of that promise. Thus far, there is no objection to the count. Indeed, it is not denied, but that, aside from the allegations respecting the contract with Jabez G.

Curtiss and the writing, the count is well drawn, and the averments made in apt and appropriate words. But it is insisted, on the part of the defendant, that those allegations shew, that the contract was made jointly with the plaintiff and Jabez G. Curtiss; and if so, a suit cannot be maintained upon it, in the name of one of the joint promisees alone. But do these allegations amount to an averment that the contract was joint ? It is expressly stated, that the defendant made one contract with the plaintiff, and a similar one with Curtiss.

Thus far there is nothing indicating a joint T., „ , , , , It is then alleged, that the defendant made and delivered to the plaintiff and Curtiss a certain writing, which ⅛ recited in the count. But it is not averred, that the defendant made any such contract as therein stated ; or that the two contracts were merged in one, by the written instrument. The writing, on trial to the jury, might be evidence of the merger; but the mere allegation that such a writing was made and delivered, does not amount to an averment that the defendant made such a contract as might be proved by the writing.

No rule is better established than that facts must be averred, and not the mere evidence of them. Thus, where the plaintiff stated in his declaration, that the defendant, in and by a certain writing or receipt, acknowledged that he had borrowed of the plaintiff certain notes, this was holden to be no averment that he did borrow them, only that there was evidence of his having borrowed them. And the declaration, upon demurrer, was holden insufficient. Brunson v. Brunson, 2 Root, 73.

So in an action on a promissory note, where no time of payment was specified in the note or declaration, the court held, that although the legal effect of such note was, that it was payable on demand, and on trial would have furnished such evidence ; yet, as the plaintiff had declared, not according to the legal effect of his contract, but on the evidence only, they adjudged the declaration insufficient. Bacon v. Page, 1 Conn. Rep. 404.

And in a more recent case, the plaintiff in a bill in chancery to redeem mortgaged premises, claimed title to the equity of redemption, by virtue of the levy of an execution, and omitted to state that the execution had been recorded upon the town records; the return of the officer upon the execution was set out in the pleadings ; and from that it appeared, that the execution and endorsement had been recorded. But the court held the bill insufficient, for the want of an averment that such record had been made.

The judge, in giving the opinion of the court, said, “ It is an established rule in pleading, that the plaintiff should declare upon the facts constituting the gist of his action, according to their legal operation, and not on the evidence of those facts.” Hobart v. Frisbie, 5 Conn. Rep. 592. The fact that the defendant made a contract with Jabez G. Curtiss similar to the one made with the plaintiff, is perfectly immaterial, and can have no effect in impairing the plaintiff’s right to recover upon his contract.

As little effect can be produced by the mere fact that the defendant made and delivered to the plaintiff and Curtiss a certain writing, whatever may have been the contents of that writing. All the allegations, therefore, respecting the contract with Curtiss, and the writing specified, are perfectly immaterial, and may be rejected as surplusage. The opinion of a majority of the court, therefore, is, that the count is sufficient, and that judgment must be entered accordingly. Williams, Ch. J., and Storrs, J., were of this opinion. Church, J. I am ever unwilling to yield to objections merely technical.

But it sometimes happens, that such objections are the result of principles so fundamental and long established, that to disregard them, would seem to manifest an opposition to the authority of precedent. I understand the court to concede, and very properly, I think, that the written contract set out in the third count in this declaration, is a promise by Spencer, the defendant, to pay Jabez and Truman Curtiss jointly, for cheese bought of them.

It was contended, in argument, that this contract was evidence of a several promise made to each, and of a separate and distinct interest in Jabez and Truman Curtiss to the property sold. And I understand this was the opinion of the learned judge, by whom this case was decided in the superior court. I cannot construe it thus. The defendant certifies, that he has purchased of Jabez G. Curtiss and Truman Curtiss, “ all of their cheeseThe obvious meaning of this language, is, that the cheese was purchased of them jointly, and belonged to them jointly.

And though he after-wards speaks of “said dairies,” it is in reference to the before-mentioned joint purchase, without any intimation that the dairies were the separate property of each. This being so, a material question raised by the demurrer, is, whether in the third count in the declaration, the plaintiff - does not show that he alone cannot sustain the action, because he sues alone upon a joint contract made with himself and another, without showing that the joint promisee, not joined as plaintiff, is dead.

This depends upon the question, whether the recital of the contract in this count, can be rejected as surplusage. I differ from a majority of my brethren, in believing that it cannot be thus rejected. I agree to the general legal positions, which, I understand, controul the opinion of the court, — that, matter of surplusage will not vitiate a plea; and that when an averment in pleading may be wholly rejected, without prejudice to the sufficiency of the plea in other respects, such averment is surplus-age.

And I agree further, that the pleader need not have set forth this recited contract; and that the count would have been legally sufficient, without such recital. But there are other principles of equal authority, restraining the general application of the doctrines above conceded, which, in my judgment, are of exact application to the present case, and decisive of the question here raised. No allegation which is descriptive of the identity of the cause of action, or of any thing which is essential to the claim or defence, can be rejected as surplusage. 3 Stark. Ev. 1539.

So where a party pleads unnecessary matter, which shows that he has no cause of action, or no legal defence, the matter thus pleaded will be fatal to that which would otherwise have been good. For in this case, the superfluous matter cannot be rejected as immaterial, since it shows, that the pleader has, according to his own statement, no cause of action or defence. Gould’s Pl. 154. In the present case, the plaintiff has said, notwithstanding his form and manner of declaring, that his real and sole cause of action, is the recited agreement; and he is to be taken at his word ; otherwise, the defendant is misled.

The pleader declares upon a contract or promise made to himself alone ; and with this exception, it appears to be literatim the identical promise contained in the recited contract ; and then he continues to say, that at the same time, the defendant made a separate agreement with Jabez G.

Curtiss, on the same terms and conditions, in all respects, with the one made with the plaintiff; and still continuing his averments in regard to these two promises, he says, that the defendant, then and there, that is, at the precise time and place when and where these promises were made, delivered to (he plaintiff and the said Jabez, the recited agreement; not that he delivered an agreement to each one separately ; and immediately, he avers, that in pursuance and consideration of such agreement and understanding of the defendant, viz. the agreement delivered to the plaintiff and the said Jabez G.

Curtiss jointly, next before alleged and recited, he, the plaintiff, delivered his cheese to the said Alpha Sage, &c.

Now, it seems to me, whether this count in the declaration be read unsophistically, or whether it be read in reference to grammatical proprieties, or under the influence of technical rules, the reader will arrive at the conclusion, that the recited agreement is the sole and very agreement upon which the action is founded, and is descriptive of it; and also, that the pleader, in his peculiarities of averment, was struggling hard in attempting to declare upon a promise made by the defendant to two, as if it had been made to one person only.

If this be so, and I think it is, then this is a case falling within the rules before alluded to, and shows, that the contract set forth at large, is the one upon wdiich the plaintiff relies for a recovery ; and, of course, according to his own statement, he has no several and separate cause of action against this defendant. Hinman, J., was of the same opinion. Judgment affirmed.