Practice — Joinder of Actions — Demurrer.
1. A cause of action founded on a tort cannot be joined with one founded on contract; but where a cause of action founded on a conversion of personal property was joined with other causes of action founded on contract; Held, not to be error; that the plaintiff might waive the tort and sue on the implied contract.
2. A cause of action against one on a joint contract as a partner may be joined with a cause of action against such partner individually.
3. Causes of action which may be joined must affect all the parties to the action: Therefore, when a complete determination of a cause of action joined with others requires parties not necessary to the other causes of action: Held, to be demurrable.
RODMAN, J. (After stating the facts as above.)
It will be convenient to consider first the misjoinder of subjects of action because our conclusion upon that may make unnecessary any consideration of the other causes of demurrer.
It must be admitted that the first three causes of action may properly be joined. C. C. P. § 126, (sub sec. 2.) For although Justice might have been sued as a joint contractor with A. D. K. Wallis, the plaintiff might sue the latter alone. C. C. P. § 63. These causes of action are all founded on contract. No cause of action founded on a tort could be joined with these unless the plaintiff could waive the tort and sue on an implied contract.
The fourth cause of action is for the conversion of the plaintiff George's corn. The plaintiff could have sued for the wrongful conversion. But we think he might also waive the tort and sue on the implied contract. The corn was on the land which George demised to A. D. K. Wallis and he was consequently a bailee of it. Without undertaking to state accurately the rule, it will suffice to say that this cause of action comes within that established by the authorities.
The leading cases on this subject are cited in 1 Chit. Pl. 100-107, and note. Chitty says, "Where the goods of a trader, after his act of bankruptcy, are taken in execution or otherwise tortiously disposed of without the concurrence of the assignees, they may waive the tort and declare in assumpsit, c." "Assumpsit also lies to recover money paid, or goods delivered by a bankrupt by the way of fraudulent preference." The case of Goldthwaite v. Kempton, 13 N.H. 449, closely resembles ours.
The fifth cause of action is misjoined with the others. It will be observed that the plaintiff R. W. Logan and the defendants W. O. Wallis and Williams are in no wise connected with the first four causes of action. To a complete determination of the matters alleged as the fifth cause of action, they are or may be necessary parties. C. C. P. § 126, says that the causes of action which may be joined must affect all the parties to the action. We concur with the Judge in sustaining the demurrer.
Judgment affirmed with leave to plaintiff to amend his complaint. Case remanded. Let this opinion be certified.
PER CURIAM. Judgment affirmed.
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