The complaint in an action growing out of the construction of a house is in several counts. Certain of the counts concern one group of defendants; the remainder another group of defendants. The first count alleges that a plumbing subcontractor, having bought materials from the plaintiff, assigned to the plaintiff a sum due from the contractor, and that the owner guaranteed payment thereof to the plaintiff "upon the completion of the two buildings described in such assignment." Then follows allegation of another agreement, founded upon a letter written to the plaintiff by the owner and one Gribbon as the owner's trustee, stating that the trustee "will see, upon presentation of your bill to me, that it is paid in full, upon completion of the work," and allegation of a declaration of trust, approved by the owner, in which one Devino accepted a certain sum from the owner to hold as trustee and to pay interested parties in proportionate shares. The first count apparently seeks recovery from the owner and Gribbon upon the guarantee and agreement, and against Devino as trustee. The owner demurs on the ground that the complaint fails to allege that the buildings were completed within the term of the agreement. The demurrer is sustained. The third count, reiterating the story told in the first count, alleges that the owner conveyed part of his property to his wife and part to a corporation, both defendants herein, conspiring with them to cheat his creditors. A demurrer to this count alone, on the ground that the count does not allege a conspiracy by the other defendants, is not well founded, since the other defendants are not involved in the circumstances which gave rise to the third count. The owner's demurrer to the entire complaint on the ground that several separate causes of action in favor of and against distinct and separate persons are improperly joined in the same complaint, is overruled. All such causes of action arise out of the same transaction. Where one count is good, a demurrer addressed to the entire complaint is bad. An objection to the joinder of contract and tort actions in the same complaint is untenable (Gen. Stat. [1930] § 5512). A corporation may be a party to a conspiracy.
ELLS, J.
The story unfolded in the complaint is that of a man who set out to build himself a house. An unstable financial structure apparently rose to greater heights than the dwelling itself, for the complaint is silent as to the somewhat important issue as to whether the house was in fact erected. As some of the payments sued for are contingent upon completing the house to the satisfaction of the owner, it is small wonder that the complaint now encounters a demurrer.
The complaint, having to do with an extremely complicated situation, is in five counts, some of which tell a story concerning one group of defendants, some as to another group. The underlying facts are the same. The subsequent conduct of the various parties arises out of the same original transaction.
The first count is so intricate and complicated as to almost defy analysis. Apparently the plumbing subcontractor bought materials from the plaintiff, and had coming $2,431.20 from the contractor, which he assigned to the plaintiff, and the owner guaranteed its payment to the plaintiff "upon the completion of the two buildings described in such assignment to the satisfaction of the same William E. Flanagan."
Then another agreement is set up. The owner, and Gribbon as his trustee, wrote the plaintiff a letter stating that the trustee "will see, upon presentation of your bill to me, that it is paid in full, upon completion of the work." The appearance of a trustee for the owner gives rise to the suspicion that there has been financial anguish.
Out of the blue there now appears, without any explanatory words, one Ralph Devino, who executed a declaration of trust, approved by the owner, in which Devino accepts $4,036.36 from the owner to hold as trustee and pay it to interested parties in proportionate shares, as stated in a lengthy agreement.
It is then alleged that Devino has this sum in his hands and that the sum of $2,431.20 still remains due and payable to the plaintiff.
One may guess, but it is only guesswork, that this count seeks to recover from the owner and his trustee Gribbon upon the guarantee and agreement. Paragraph 10 indicates this. It is apparently against Devino as trustee, also. It may be that it is also against the original contractor. The plumbing contractor is not a defendant.
The owner demurs on the ground that there is no allegation that the buildings were completed within the term of the agreement. As pointed out above, this appears to be a vital defect, as to the owner, and the demurrer is sustained.
The third count, reiterating the story told in the first count, alleges that the owner conveyed part of his property to his wife and part to Flanagan Cleaners, Inc., and in so doing conspired with them to cheat the creditors. The owner has demurred to this because it does not allege a conspiracy by the other defendants. This demurrer obviously is not well founded. The demurrer is to this count only, and the other defendants do not come into the picture here painted and could not be named as co-conspirators.
The owner also demurs to the entire complaint because there are several separate causes of action in favor of and against distinct and separate persons improperly joined in the same complaint. They all arise out of the same transaction. The demurrer is overruled on this ground.
Mr. Flanagan demurs to the entire complaint but directs the first ground against the third count. There is no demurrer to the second count, and if one count is good, a demurrer to the entire complaint is bad. The second ground complains of the joinder of a contract and a tort action in the same complaint. There is nothing to that. See section 5512 of the General Statutes, Revision of 1930.