Opinion filed November 7, 1933.
Pleading — Demurrer for Variance between Declaration and Specification — When Indebitatus Assumpsit Lies on Express Contract and Evidence Admissible under Such Count as to Express Contract — Bills and Notes — Overdue Note as Demand Obligation — Purpose of Specification — County Court Rule 9, Paragraph I — "Collection Suit" — Defendant's Duty To Elect Certain Courses after Overruling of Demurrer to Complaint — Entry of Judgment for Plaintiff on Overruling of Defendant's Demurrer to Complaint and Failure To Elect To Plead Over — Judgment for Plaintiff "as per Specification on File, Clerk To Assess" as correct in Form — Appeal and Error — Reference to Docket Entries — Claim as to Failure of Proof Not Raised Below as Unavailable in Supreme Court — Exception to Judgment as Not Raising Question of Failure of Proof — Appearance — Determination of Whether Appearance Is General or Special.
1. Demurrer to declaration on ground of variance between it and specification, held properly overruled, since specification is no part of pleading so far as subsequent proceedings are concerned.
2. Generally, where express contract, not under seal, has been fully performed by plaintiff, and nothing remains to be done under it but payment of money by defendant, plaintiff may declare specially on original contract, or generally in indebitatus assumpsit, at his option.
3. By declaring generally in indebitatus assumpsit, where all that remains to be done under express written contract is payment of money by defendant, plaintiff does not repudiate or avoid written contract, but may produce and rely upon it in evidence to sustain his case.
4. Note described in specification as payable thirty days after date, at time suit was brought being more than year overdue was then in effect, demand obligation, and, as nothing remained to be done under it but payment of money, count of indebitatus assumpsit was applicable, and claimed variance between money count and note as described was without merit.
5. Purpose of specification is only to circumscribe right of recovery, and apprise defendant of what he is to meet.
6. Action of contract declaring on general counts in assumpsit, where specification failed to limit plaintiff's claim for recovery to note described therein, held not "collection suit" within meaning of county court rule 9, par. I.
7. Where plaintiff filed demurrer to declaration which was overruled, it then became his duty, unless cause was passed to Supreme Court before final judgment under G.L. 2262, to elect whether he would abide by his demurrer, let judgment go against him, or whether he would plead over and thereby waive demurrer.
8. Where defendant excepted to overruling of his demurrer to declaration and did not elect to plead over, court could enter judgment for plaintiff.
9. Form of judgment for plaintiff "as per specifications on file, clerk to assess," entered by court when defendant's demurrer to complaint was overruled and he elected to stand on demurrer, held proper.
10. Reference may be had to docket entries in case to determine whether judgment was perfected by assessment by clerk of amount due under specification.
11. Claim that there was total failure of proof, raised for first time in Supreme Court, will not be considered.
12. Exception to judgment not specifying any ground of claimed error does not raise question of total failure of proof.
13. Whether appearance is general or special depends upon what defendant does, rather than what he says.
14. Where relief sought can only be granted upon hypothesis that court has jurisdiction of cause and person, appearance is held to be general regardless of attempt to limit it to special purpose.
ACTION OF CONTRACT. Demurrer to declaration. Heard by the court at the April Term, 1933, Windham County, Sturtevant, J., presiding. Demurrer overruled. The defendant excepted. The opinion states the case. Affirmed.
Frank W. Morrison (of Uxbridge, Mass.) pro se and Edward C. Barry for the defendant.
Robert R. Twitchell for the plaintiff.
Present: POWERS, C.J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.
The declaration contains only the common counts in assumpsit. A specification was attached to the writ giving notice that on trial plaintiffs would seek to recover on a certain promissory note described as follows:
"$300. Bellows Falls, Vt. 8/31 1931.
30 days after date I promise to pay to the order of F.W. Fuller Co. Three Hundred Dollars at the National Bank of Bellows Falls" etc. Signed "FRANK MORRISON."
The defendant demurred to the declaration, the demurrer was overruled, and he expected. He then elected to stand on his demurrer. Thereupon, plaintiffs moved for a judgment, and judgment was entered for them on the specification "as per specification on file, clerk to assess," to which defendant excepted.
The sole ground of demurrer briefed, and argued in this Court, is that of variance between the declaration and the specification, in that the former alleges a promise to pay on demand, while the latter shows a promise to pay 30 days after date. Since the specification is no part of the declaration so far as subsequent pleadings are concerned, Aseltine v. Perry, 75 Vt. 208, 54 A. 190; New York Central R.R. Co. v. Clark et al., 92 Vt. 375, 104 A. 343; Powell Powell v. Greenleaf Currier, 103 Vt. 46, 151 A. 508; Price v. Holden, 104 Vt. 504, 162 A. 376, the demurrer was properly overruled.
The defendant claims, however, that he can take advantage of the same question under his exception to the judgment. Be that as it may, the question is without merit. The general rule is, that where an express contract, not under seal, has been fully performed by the plaintiff, and nothing remains to be done under it but the payment of money by defendant, which is nothing more than the law would imply against him, plaintiff may declare specially on the original contract, or generally in indebitatus assumpsit, at his option. Manning Mfg. Co. v. Miller Bros., 87 Vt. 455, 89 A. 479; Bradley v. Phillips, 52 Vt. 517; Groot v. Story, 41 Vt. 533; and earlier cases. By declaring in the latter form the plaintiff does not repudiate or avoid the written contract, but may produce and rely upon it in evidence to sustain his case. American Surety Co. v. Construction Co., 182 Mo. A. 667, 166 S.W. 333. While the note described in the specification was, by its terms, payable thirty days after date, at the time this suit was brought it was more than a year overdue, and consequently was then, in effect, a demand obligation. Nothing remained to be done under it but the payment of money by defendant, and that the amount due thereon is recoverable in this form of action is too clear to admit of argument. Since the purpose of a specification is only to circumscribe the right of recovery and appraise defendant of what he is to meet, the claimed variance is without merit.
It remains to consider whether plaintiffs were entitled to a judgment as the case then stood. They say that this is a collection suit within the meaning of county court rule 9, par. I. Since the specification fails to limit their claim to recover to the note described therein, this is not so. Niles v. Rexford, 105 Vt. 492, 168 A. 714, decided at the October Term, 1933, of this Court. But defendant filed a demurrer, was heard thereon, and was cast. It then became his duty, unless the cause was passed to this Court before final judgment under the provisions of G.L. 2262, which was not done, to elect whether he would abide by his demurrer and let judgment pass against him and then go up, or whether he would plead over and thereby waive his demurrer. German v. Bennington Rutland R.R. Co., 71 Vt. 70, 42 A. 972; Citizens Savings Bank Tr. Co. v. Northfield Tr. Co., 89 Vt. 65, 94 A. 302, Ann. Cas. 1918A, 891; White v. Hall, 91 Vt. 57, 99 A. 274. He chose to do the former. In the circumstances the court was well within its rights in entering judgment as it did, county court rule 13, and cases last cited; and the form of judgment entered has been approved by bench and bar too long now to be questioned. It appears from the docket entries in the case, to which reference may be had, Spaulding v. Warner, 57 Vt. 654; Platt, Admx. v. Shields Conant, 96 Vt. 257, 264, 119 A. 520; Brown v. Vermont Mut. Fire Ins. Co., 92 Vt. 272, 102 A. 1042, that the judgment was perfected by the assessment by the clerk of the amount due under the specification the day the judgment was entered. The case differs in this respect from Price v. Holden, supra.
In his brief defendant says that there was a total failure of proof and a fatal variance in the record, and that the court erred in entering judgment "as per specification on file" even though the note specified had been produced and put in evidence which plaintiffs failed to do. The question of variance has been disposed of. This is all that is said regarding lack of proof, and the first time the question was raised so far as appears.
If defendant desired to raise that question, he should have called it to the attention of the court so that it could have been considered and passed upon. Having failed to do that, the question is not before us. The exception to the judgment, which does not specify any ground of claimed error, does not raise it. Kennedy et al. v. Robinson, 104 Vt. 374, 160 A. 170; Babcock et al. v. Carter et al., 102 Vt. 137, 146 A. 250; Higgins, Admr. v. Metzger, 101 Vt. 285, 298, 143 A. 394.
The docket shows, and the exceptions state, that defendant appeared specially. This undoubtedly reflects what he says in the preface to his demurrer. He therein says that he appears specially, that he does not waive his plea in abatement, his motion to strike out the specification, or submit to the jurisdiction of the court. But whether an appearance is general or special depends upon what the defendant does, rather than what he says. When, as here, the relief sought can only be granted upon the hypothesis that the court has jurisdiction of the cause and the person, the appearance is held to be general regardless of the attempt to limit it to a special purpose. Coffee v. City of Chippewa Falls, 36 Wis. 121; Smith v. Day, 39 Or. 531, 538, 64 P. 812; Merrill v. Houghton, 51 N.H. 61; Farmer v. Nat. Life Assn., 138 N.Y. 265, 33 N.E. 1075; Bestor v. Inter-County Fair, 135 Wis. 339, 115 N.W. 809; Thompson v. Pfeiffer, 66 Kan. 368, 71 P. 628; Merchants' Heat Light Co. v. Clow Sons, 204 U.S. 286, 51 L. ed. 488, 27 Sup. Ct. 285; 2 Enc. Pl. Pr. 625; 2 R.C.L. 328.
This disposes of all questions presented.