The first two counts are case for deceit; the third is assumpsit. The question whether counts for distinct and separate wrongs, for which by law redress must be sought in different forms of proceeding, may be joined in the same action, is not raised. Hallock v. Powell, 2 Cai. 216, 217. The injury complained of in each of the three counts is substantially the same. It is the defendant's want of and failure to procure the title which he represented and contracted that he had in the timber which the plaintiffs agreed to cut and haul, whereby they were prevented from performing their agreement. For the redress of a single wrong a declaration at law may properly contain counts in different forms of action, and may be joined with a bill in equity. Rutherford v. Whitcher, 60 N.H. 110; Metcalf v. Gilmore, 59 N.H. 417. More than one method of procedure may be necessary to afford a plaintiff a full and adequate remedy. Brooks v. Howison,63 N.H. 382, 389; Tasker v. Lord, 64 N.H. 279. A plaintiff may have an election of remedies so inconsistent that he ought to be required to make his election at or before the beginning of the trial, or of such a nature that without prejudice to the defendant they may be pursued together. Clough v. Hosford, 6 N.H. 231; Whitaker v. Warren, 60 N.H. 20; Clough v. Fellows, 63 N.H. 133, 134; Merrill v. Perkins, 59 N.H. 343; Elsher v. Hughes, 60 N.H. 469; Peaslee v. Dudley, 63 N.H. 220. Irrespective of the pleadings, convenience may require that one only of several questions be first tried. Bemis v. Morey, 62 N.H. 511. Whether all the issues joined can be justly and conveniently tried together is ordinarily a question of fact to be determined at the trial term. Owen v. Weston, 63 N.H. 599. It was not error in law to require the plaintiffs to elect on which count they would proceed.
The third count is founded not on the written contract set forth in it, but on an oral agreement of which that contract is alleged to be the consideration. It alleges, in substance, that the defendant, in consideration that the plaintiffs at his request had entered into the written contract, promised them that he had the right to cut and take the timber from the lots specified, — that in fact he *Page 417 neither had nor procured that right, whereby they were prevented from performing the written contract, and were otherwise damnified. The gravamen of the plaintiffs' complaint is, that the defendant by the breach of his oral agreement prevented them from performing their written contract. The execution of a contract in writing may be a good consideration for a verbal agreement relating to the same subject-matter. Morgan v. Griffith, L. R. 6 Exch. 70; Angell v. Duke, L. R. 10 Q. B. 174.
It is not advisable to determine in advance whether particular testimony, as, for example, "that at the time when the written contract was executed the defendant informed the plaintiffs that he had a right to operate the land and to make the written contract, and would save them harmless from the interference of other parties," is or is not competent evidence of the agreement declared upon. A decision of this and other similar questions on the meagre facts reported might mislead the parties. They can be determined more satisfactorily in the first instance at the trial of the cause, in view of the circumstances then developed, and the exact language of the witnesses. Such an agreement as that declared upon might be set up for the purpose of evading the rule of law that negotiations of the parties before and at the time of making a written contract are merged in it.
It is apparent from the terms of the written contract that the timber to which it relates was understood by both parties to be the property of the defendant, or at least that he had the right to cut and carry it away. It is a contract for cutting and hauling timber, not for its sale. To enable the plaintiffs to do the work, the right to enter upon the land and cut the timber was essential, and this right the defendant by implication agreed to give them. The plaintiffs might declare on the contract according to its legal effect, alleging the breach to be the defendant's want of and neglect to procure the right to cut. French v. Bent, 43 N.H. 448; Smith v. Railroad, 36 N.H. 458, 493-495. The cause of action thus stated is the same as that which they have undertaken to set forth in the third count, and may be supported without encountering objections to which that count, and evidence offered to sustain it, are exposed.
The measure of damages is the net value of the written contract, — the difference between the stipulated price and the cost of doing the work, — together with compensation for any incidental loss that could be reasonably anticipated by the parties as likely to result from the deceit or breach of contract. Noyes v. Blodgett, 58 N.H. 502; French v. Bent, 43 N.H. 448, 450; Chartier v. Marshall, 56 N.H. 478, 480; Masterton v. Brooklyn, 7 Hill 61; Wakeman v. Wheeler, etc., Mfg. Co., 101 N.Y. 205; Fox v. Harding, 7 Cush. 516, 522; Philadelphia, etc., Railroad Co. v. Howard, 13 How. 307, 344; Morey v. King, 49 Vt. 304, 312, 313. If the plaintiffs had done nothing looking toward the *Page 418 performance of the contract, its net value would have been the extent of their loss. The expense of preliminary work done and necessary to be done before the cutting and hauling could be commenced would be a partial or a total loss according as they cut and hauled a part or none of the timber. The cost of the maintenance of workmen and teams in idleness for such time as was reasonably necessary to enable the plaintiffs to consult counsel upon their being notified to cease cutting, and for a reasonable time after they were compelled to desist, may be a loss for which they are entitled to recover. They can recover for no loss of this character which by ordinary care they could avoid. Noyes v. Blodgett, 58 N.H. 502; Rafferty v. Drew,64 N.H. 616; Dillon v. Anderson, 43 N.Y. 231, 237. Other questions relating to damages are not considered. At the trial some of them may not arise, and others may be presented in a different shape.
Case discharged.
BLODGETT, J., did not sit: the others concurred.