Practice — Joinder of Actions — Demurrer. Civil Action, tried at Spring Term, 1876, of Ruthereori> Superior Court, before Schenck, J. The plaintiff's in this ease are R. W. Logan and George W. Logan, and the defendants are three in number, to-wit, A. D. X.'Wallis, W. 0. Wallis, and R. J. Williams. The complaint states five causes of action in respect to which it demanded relief. 1. Eor the rent of a house at Chimney Rock which George W. Logan demised to A. I). X. Wallis. 2.
Good law ✅— No negative treatment on recordhow we know
Decided 1877-01-05
How this case has been cited
Cited by 5 later decisions — most recently January 1954
5 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶1
(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.
¶2
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 fcAmded 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.
¶3
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 coni 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.
¶4
The leading cases on this subject are cited in 1 Chit. Pl. 100-107, and note. Ohitt.y 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 as-sumpsit, &c.” “Assumpsit also lies to recover money paid, or goods delivered by a bankrupt by the way of fraudulent
*419
preference.” The case of
Goldthwaite
v.
Kempton,
13 N. H. 449, closely resembles ours.
¶5
The fifth cause of action is misjoined with the others. It will fee observed that the plaintiff R. W. Logan and the defendants W. 0. "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.
¶6
Judgment affirmed with leave to plaintiff to amend his <eomplaint. Case remanded. Let this opinion be certified.
