Otis v. Mechanics' Bank

Practice — Pleading—Misjoinder—Remedy.—Where several similar causes of action are set forth in one petition, but not separately stated, the proper remedy is not by demurrer, hut by motion to require the plaintiff to elect upon which cause he will proceed to trial, and to strike out the remaining causes of action thus improperly joined in one count.

Error to St. Louis Court of Common Pleas. The respondent, an incorporated banking institution, issued and circulated as money notes of $5, $10, $20 and $50 each, payable on demand to bearer; and in 1859, one Henry Collier, in the course of trade through the branch of said bank at Weston and otherwise, became the owner and bearer of $8,685 of said notes, which, without fault on his part, were destroyed by fire. He made known his loss, tendered bond of indemnification, &c., to the bank, and demanded payment of said sum of money, which was refused. Afterwards, for value, he assigned his claim or right of action to the plaintiff, who instituted suit to recover said sum of money. The petition for relief is based on two counts or statements ; one on special facts and circumstances in nature of bill in equity; the other after the form of indebitatus as-sumpsit for money had and received, &c., equal to the sum of $3,685. The defendant filed a demurrer, which was sustained. I. Under our system of pleading, does the fact of one man being the owner of many bank notes, payable each on demand to bearer, create him a creditor for one indebtedness, with one right of action, or for many debts with separate rights of action ? II. If an indebtedness is one thing, and evidence thereof a different matter, does the loss or destruction of the latter destroy the former ? Bank notes, like all others, are nothing but evidence of in debtedness; and the loss or destruction of the notes does not disturb the relation of creditor and debtor. It may and does affect the proof, but not the indebtedness. This question of right of action for bank notes destroyed, although new and open in this State, has been decided in accordance with the above principles in New York, Maine, Kentucky, Illinois, and other States. (6 Ward. 878; 1 Aik. 50; 14 B. Mon. 306 ; 18 id. 310; 3 Scam. 135 ; 2 Wash. Cir. C. 172; 4 id. 253; see also cases cited in each.) In answer to the question of consolidation of many debts into one indebtedness, we say: if it be true that bank notes are in law quasi money for all purposes except legal tender in payment (and of this there can be no doubt), each note becomes the representative of dollars and cents. Hence, the holder of one hundred one dollar notes is in fact and law a creditor of the bank for the sum of one hundred dollars, and not that number of debts ; and as all wise and just legislation is based on the principle of preventing multiplied litigation instead of increasing it, there can be no reason under our system of pleading to require a statement of many separate causes of action where one would answer the same purpose. Such construction would violate the letter and spirit of each article of tfie code of practice. All that is required of a plaintiff, under the old or new system, is a concise, simple statement of facts, adapted to the relief prayed. (1 Chit. PL 199, 200, 341 & 350; 19 Mo. 320, 140, 490 & 550; 9 How. Pr. 723; 10 id. 159; 12 id..326 ; 14 id. 456; 7 Mo. 174; 1 Chit. PI. 384; Sfceph. PL 318; 3 Black. Com. 154; 2 Sto. on Con. 549-56.) But it may and will be urged, that, although many causes of action may be united in one petition, yet they must be stated in separate counts. What, then, is the common and legal sense meaning of a cause of action ? It is nothing more nor less than the right of one person to petition a court of justice to enforce another to perform what otherwise was his duty to do. Whether or not the facts stated constitute a proper cause of complaint, or petition, is a question of law tested by the rules of right, justice and good conscience. What is the cause of complaint made known in this case ? It is, that the Mechanics’ Bank, for value received, promised to pay Collier $3,685 on demand; and as the written evidence of such indebtedness is destroyed, the plaintiff, as assignee thereof, prays the court to be permitted to prove the indebtedness by secondary evidence. The cause of action is, in fact, the destruction of the notes, nothing more nor less. The demurrer was rightfully sustained by the court, and there is no error on the record. This is an action instituted upon lost bank bills, varying in denomination from ones to fifties, alleged to amount to the aggregate sum of $3,685, all conglomerated in a single count in the same petition, without attempting to set out or describe either of the bills or notes so alleged to have been lost or destroyed, and thereby failing to set up or show any cause of action whatever; so that, if the instruments or causes of action upon which this suit was brought were present or produced in court, the plaintiff could not recover. No cause of action is alleged as set forth in his petition; and this deficit under our code of practice was properly taken advantage of by demurrer, and final judgment was properly entered thereon. Each bank bill must be fully, separately and distinctly set forth and described, according to its legal effect, in separate counts, as required by our code of practice. (2 Mo. 34 ; 33 Mo. 497; 7 Barb. 80 ; Hardin, 3; 4 Mich. 350; 19 Mo. 551.) A pleading to be good by the settled rules of law, as established by our code of practice, must state all the necessary facts constituting a legal cause of action; and this should be set forth in a clear, certain, definite affirmation, and issuable manner, and according to its legal effect; the facts must be clearly placed by the allegations in a traversa-ble manner. Any number of facts constituting a single cause of action may be combined in a single count, but each cause of action must be separately stated in different counts. (Boyce v. Brown, 7 Barb. 80.) The proper mode of taking advantage of this error in the petition is by demurrer. (Peck v. Yan-swenner, 5 How. Pr. 172; Benedict v. Sieman, 6 id. 301; Yanasme v. People, 9 id. 342 ; 9 id. 198 ; 9 id. 313 ; 9 id. 380; 9 id. 436.) Suit on two or more notes cannot be blended in the same count; each constitutes a separate and distinct cause of action, and must be set forth and declared upon accordingly. (Lightfoot v. Rayton, Hardin 3 ; Mooney v. Eennett, 19 Mo. 551; Barns v. Holland, 2 Mo. 34 ; 4 Mich. 350 ; Boat. Sav. Ins. v. Bank of Mo. 33 Mo. 497.)