owns one half of a mortgage, and, as executrix, represents the other half, in an action of foreclosure, she properly appears as plaintiff jointly in the two capacities.50 Counts on promises made by the testator may be joined with counts on promises made by the administrator, as such." After counts by the plaintiff, as executor, for an excessive distress, and for distraining for more. rent than was due, the declaration proceeded thus: "And the plaintiff, as such executor as aforesaid, also sues the defendant for money paid by the plaintiff as such executor as aforesaid, for the defendant, at his request, and for money received by the defendant for the use of the plaintiff, and for money found to be due from the defendant to the plaintiff on an account stated between them. And the plaintiff, as such executor as aforesaid, claims," etc. It was held, on demurrer, that the declaration was bad for misjoinder.58 § 197. Class-common counts. Where the form of the action is the same, and where the same plea may be pleaded and the same judgment given on all the counts, they are well joined.59 So the common counts may be united in one complaint, if separately stated.60 The material matter of each separate cause of suit stated in a pleading must be complete within itself, but a complaint which incorporates by reference certain paragraphs set forth in the first cause of action in subsequent causes of action is not bad on demurrer.62 But they cannot be united in one count as one cause of action, without any specification of the sums due upon each several cause." 63 § 198. Contracts.-Causes of action arising from contracts, express or implied, may be united. 56 Casey v. Gibbons, 136 Cal. 368, 68 Pac. 1032. 57 Hapgood v. Houghton, 10 Pick. 154; Dixon v. Ramsay, 1 Cranch, C. C., 472, Fed. Cas. No. 3932. 58 Davies v. Davies, 1 Hurl. & Colt. 451. 59 Fairfield v. Burt, 11 Pick. 244; Worster V. Proprietors of Canal Bridge, 16 Pick. 541. 60 Freeborn v. Glazer, 10 Cal. 337; De Witt v. Porter, 13 Cal. 171; Buckingham v. Waters, 14 Cal. 146; Keller v. Hicks, 22 Cal. 457, 83 Am. Dec. 78; Birdseye v. Smith, 32 Barb. 217. Thus claims due as damages See City Carpet etc. Works v. Jones, 102 Cal. 506, 36 Pac. 841; Richardson v. Carbon Hill Coal Co., 10 Wash. 648, 39 Pac. 95. 61 Moore v. Halliday, 43 Or. 243, 99 Am. St. Rep. 724, 72 Pac. 801; Harvey v. Southern Pac. Co., 46 Or. 505, 80 Pac. 1061. 62 Sly v. Palo Alto Gold Min. Co., 28 Wash. 485, 68 Pac. 871. 63 Buckingham v. Waters, 14 Cal 146. 64 Bade v. Hibberd, 50 Or. 501, 93 Pac. 364; Or. B. & C. Codes, § 94; Wash. Bal. Codes, § 4942, (Pierce's for delay, and a demand to set aside an award, all growing out of the same contract, may be united in one action.65 To reform a written contract, and for judgment thereon, when reformed." For reformation of a contract, and for damages for breach of it." A cause of action to recover back money paid by mistake of facts rests upon an implied contract, and may be joined with a cause of action upon an express contract for the recovery of rent upon premises leased.68 Damages for false representations, and for breach of contract.69 Loss of goods by carrier, and also for freight overpaid. A cause of action for money lost through the negligence of a bailee, cannot be joined with a cause of action. for the conversion of the money to the use of the defendant."1 A cause of action for false representations in inducing the plaintiff to enter into a contract, and a cause of action for a breach of the same contract, may be joined."2 Plaintiff may sue on both the express contract, and upon a quantum meruit for the same services and materials. On the joinder of ordinary claims in contract with claims for which defendant is arrestable, the plaintiff may waive arrestability in the latter case." 70 74 § 199. Contract of partners.-A complaint, after stating cause of action on a contract against partners, and demanding judgment therefor, contained also allegations that the defendants were insolvent, and had fraudulently confessed judgment to hinder their creditors, and demanded an injunction and a receiver. Held, that although the last matter might be obnoxious to a motion to strike out, its insertion did not render the complaint demurrable.75 In Massachusetts, a surviving partner may join Code, 412); Moylan v. Moylan, 49 65 See v. Partridge, 2 Duer, 463. 67 Bidwell v. Astor Mut. Ins. Co., 16 N. Y. 263. 68 Olmstead v. Dauphiny, 104 Cal. 635, 38 Pac. 505. 69 Hurwitz v. Gross, 5 Cal. App. 614, 91 Pac. 109; Robinson v. Flint, 16 How. Pr. 240, 7 Abb. Pr. 393, note. See, however, Waller v. Raskan, 12 How. Pr. 28. 70 Adams v. Bissell, 28 Barb. 382. As to contracts, with allegations of matters of fraud, see Roth v. Palmer, 727 Barb. 652. 71 Stark v. Wellman, 96 Cal. 400, 31 Pac. 259. 72 Robinson v. Flint, 7 Abb. Pr. 393, note; and see, also, Freer v. Denton, 61 N. Y. 492; Jones v. Johnson, 10 Bush, 649. 73 Neuman v. Grant, 36 Mont. 77, 92 Pac. 43; Mont. Rev. Codes, § 6533; Berry v. Craig, 76 Kan. 345, 91 Pac. 913. 74 Hickox v. Fay, 36 Barb. 9-14. 75 Meyer v. Van Collem, 7 Abb. Pr. 222. in the same action a demand due to the firm, and another due to himself in his own right, or demands due to him as the surviving partner of two firms.76 § 200. Each cause complete.-Each separate cause of action, as stated, must be complete in itself, and must stand by itself." And conversely, that numerous items of a distinct class should be stated in distinct counts.78 § 201. Injuries to the person. Claims for injuries to character, or injuries to character and malicious arrest and prosecution, may be united." Plaintiff may recover in an action for the combined injury to character and person, when the matters arise from and constitute a part of the same transaction.80 81 § 202. Injuries to person and property.-It seems that negligence and the damage arising therefrom, both to the person and property of plaintiff, may be united. For one injury, all the acts of negligence should be alleged in one count.82 Injuries resulting to both person and property from the same negligent act constitute but one cause of action.83 A complaint does not join a cause of action for recovery of real property with one for personal propperty, in violation of section 427 of the Code of Civil Procedure, 76 Stafford v. Gold, 9 Pick. 533. Misjoinder of causes of action involv ing partnership transactions. See Behlow v. Fischer, 102 Cal. 208, 36 77 Lattin v. McCarty, 17 How. Pr. 239, 8 Abb. Pr. 225. See, also, Watson v. San Francisco etc. R. R. Co., 41 Cal. 17; Harsen v. Bayaud, 5 Duer, 656; Dorman v. Kellam, 14 How. Pr. 184; 193, ante. 78 Adams v. Holley, 12 How. Pr. 326; Hillman v. Hillman, 14 How. Pr. 456. And see, also, Longworthy v. Knapp, 4 Abb. Pr. 115. 79 Cal. Code Civ. Proc., § 427; Howe v. Peckham, 6 How. Pr. 229, S. C., 10 Barb. 656; Hull v. Vreeland, 42 Barb. 543, 18 Abb. Pr. 182; Brown v. Rice, 51 Cal. 489; Carter v. De Camp, 40 Hun, 258; Watts v. Hilton, 3 Hun, 606. so Jones v. Steamship Cortes, 17 Cal. 487, 79 Am. Dec. 142. 81 Cal. Code Civ. Proc., § 427; Williams v. Holland, 10 Bing. 112, 117; Blin v. Campbell, 14 Johns. 433; Wilson v. Smith, 10 Wend. 328; 1 Chit. Pl. 27; Howe v. Peckham, 6 How. Pr. 229; Freeman v. Webb, 21 Neb. 160, 31 N. W. 656. 82 Dickens v. New York Cent. R. R. Co., 13 How. Pr. 228. 83 Howe v. Peckham, 10 Barb. 656, S. C., 6 How. Pr. 229. A cause of action for an injury to the person is improperly united with a separate cause of action for a subsequent injury to the complainant's property. Thelin v. Stewart, 100 Cal. 372, 34 Pac. 861. though the prayer ask for both, if the facts pleaded entitle a recovery for only one of the two.84 § 203. Nuisance.-Any number of separate causes of action for distinct nuisances may be joined in one complaint, if they affect all parties.85 Also, in an injunction suit plaintiff may ask for both legal and equitable relief.86 § 204. Injuries to property.-Actions for injuries to property may be united.87 The union in one count of a complaint of an allegation that defendants "have wrongfully built dams and flumes across said Mormon creek . . . so as to turn the water of said creek out of its natural channel," etc., and thus divert it from plaintiff, with an allegation that defendants "have constructed gates, etc., in their said dams and flumes, which they . . . hoist for the purpose of clearing out said dams and flumes of slum, stone, and gravel, the accumulation of which renders the water useless to plaintiff," does not make the complaint demurrable on the ground that it unites several distinct causes of action in one count.88 In an action for injuries to a mining claim, a claim for damages to the plaintiff by reason of the breaking away of the defendant's dam, and the consequent washing away of the paydirt of the plaintiff, may properly be joined with a claim for damages for preventing plaintiff from working his claim. Detention of property, and injury to it while detained, may be united. Value of property destroyed, and damages, may be united. Allegations for conversion and detention, and prayer for specific delivery are permissible, being held a demand for only one kind of remedy;92 also for violation of agreement, and for injury to personal property.93 Damages and injunction may be joined in an action for threatened injury to property. The owner of land may, as assignee, join in the same complaint a 91 84 Levy v. Noble, 135 Cal. 559, 67 Pac. 1033. 85 Astill v. South Yuba W. Co., 146 Cal. 55, 79 Pac. 594; Rooney v. Gray, 145 Cal. 753, 79 Pac. 523. 86 Durga v. Lincoln Creek Lumber Co., 47 Wash. 477, 92 Pac. 343; Wash. Bal. Codes, § 4793. 87 Cal. Code Civ. Proc., § 427; More v. Massini, 32 Cal. 590; Howe v. Peckham, 6 How. Pr. 229; Cleveland v. Barrows, 59 Barb. 364. 89 88 Gale v. Tuolumne Water Co., 14 Cal. 25. 89 Fraler v. Sears Union Water Co., 12 Cal. 555, 73 Am. Dec. 562. 90 Smith v. Orser, 43 Barb. 187. 91 Tendeson v. Marshall, 3 Cal. 440. 92 Vogel v. Badcock, 1 Abb. Pr. 176. 93 Badger v. Benedict, 1 Hilt. 414, 4 Abb. Pr. 176. claim for damages, caused by a trespass on the land while it was owned by his grantor, and a claim for an injunction for a threatened injury to the land. The plaintiff may join in the same complaint a cause of action for distinct and independent injuries. to property, and the property injured in each cause of action may be the same or different, and may be either personal or real.** § 205. Jurisdiction. Where the separate causes of action amount together to more than the sum required to give jurisdiction, if joined in one declaration they will give jurisdiction.95 96 § 206. Money counts and warranty.-Money counts may be added to a count on the warranty. Or a count for deceit may be added to a count on the warranty. But a claim in assumpsit for warranty of a horse, and for wrongfully concealing his defects, may not be united.97 But when the form of action in tort is adopted, it is not necessary, to enable plaintiff to recover upon the count for false warranty, that a scienter should be averred. 98 § 207. Money had.-A claim for money had and received, and a claim for the delivery of a satisfied promissory note arising out of the same transaction, may be united." § 208. Quantum meruit.-A quantum meruit or a quantum valebat may be joined with counts upon a specialty.100 101 § 209. Separate demands.-Separate demands under one and the same right may likewise properly be joined in the same count.1 Where the exact legal nature of plaintiff's right depends upon facts peculiarly within the knowledge of defendant, plaintiff may set forth the same single cause of action in several counts, so as to meet the possible proofs.102 Several grounds of liability against the same defendant, arising out of the same transaction, 94 More v. Massini, 32 Cal. 590. 95 Ridgway v. Pancost, 1 Cranch, C. C., 88, Fed. Cas. No. 11818. 96 Vail v. Strong, 10 Vt. 457; Dobbin v. Foyles, 2 Cranch, C. C., 65,. Fed. Cas. No. 3942. 97 Sweet v. Ingerson, 12 How. Pr. 331; Springstead v. Lawson, 23 How. Pr. 302. 98 Brown v. Edgington, 2 Man. & G. 279; Holman v. Dord, 12 Barb. 336; Schuchardt v. Allens, 1 Wall. 359, 17 L. Ed. 642. 99 Cahoon v. Bank of Utica, 7 How. Pr. 401. 100 Smith v. Proprietors of First Cong. Meeting-house of Lowell, 8 Pick. 178; Van Deusen v. Blum, 18 Pick. 229, 29 Am. Dec. 582. 101 Longworthy v. Knapp, 4 Abb. Pr. 115. And see Wood v. Sidney Sash etc. Co., 92 Hun, 22, 37 N. Y. Supp. 885. 102 Spotswood v. Morris, 10 Idaho, 129, 77 Pac. 216. |