The plaintiff alleged that he was in debt, and applied to W.A. Coleman, president of the Bank of Columbia, for financial assistance; and that Coleman, as president of this bank, in its behalf, contracting to advance the money necessary to relieve his financial embarrassment, and that the contract was broken with the fraudulent purpose of throwing on the market the property of the plaintiff, in order that Coleman and his bank might purchase it at a sacrifice to the plaintiff.
It is alleged in the complaint that the other parties to the action were in control of the Bank of Columbia and managed its affairs, and hence were responsible for the alleged breach of contract.
When the case was called and the jury impaneled the defendants stated that the plaintiff had united three causes of action, one ex contractu and the others ex delicto, and moved that the plaintiff be required to elect on which of the three causes of action he would go to trial.
The trial Judge ordered the plaintiff to elect on which cause of action he would proceed, and this he did, under the order of Court. *Page 122
I think that the complaint states but a single cause of action: Damages for the alleged breach of the contract between W.A. Coleman, as president of the Bank of Columbia, and as agent of the other banks named, whereby he agreed to lend to the plaintiff a certain sum of money, which loan was afterwards refused, to the damage of the plaintiff $50,000. The allegations of deceit and conspiracy were not intended to allege a separate cause of action, but were stated as a part and parcel and aggravation of the cause of action, based upon the fraudulent breach of the contract. As the plaintiff's counsel say in their printed argument. "There were not two causes of action, but only one." Had there been two causes of action apparent on the face of the complaint the remedy was by demurrer, and demurrer was not interposed. Had the defendant deemed that irrelevant and redundant matter was stated in the complaint, having no connection with the cause of action, then the remedy would have been to have moved to strike out such irrelevant or redundant matter, and such motion was not made.
This brings us to the consideration of the question whether in the circumstances the plaintiff should have been permitted to have proceeded with the trial of his cause upon the complaint as framed. It was strongly urged before the Court that under the proof in the case it would have been illegal to have made the loan, because, taken in connection with other loans already made, it would have exceeded the sum which they could have lawfully loaned to the plaintiff, and that, even though not pleaded, when such appeared to have been the case from the testimony, it could avail to defeat the plaintiff's cause of action.
I think that the question involving the mode of procedure strikes at the root of this case in the beginning, and is of such far-reaching consequences as affecting the orderly trial of causes that this suggestion should not prevail over the plaintiff's right to have his case presented under the prevailing rules of practice. *Page 123
I think that the doctrine of election is well settled by the decisions, but is not really involved in this case, as I view it. The question is whether the plaintiff under a statement, which I find to contain a single cause of action, should have been allowed to proceed to trial and to have had the opportunity of offering proof on such allegations, without any fear in his mind of transgressing such order.
Counsel would naturally be confused and upset by having such order interposed. The certainty of the mode of procedure should be adhered to. A departure from it can only lead to confusion and uncertainty, and I think there was error in requiring the plaintiff to elect, and that the judgment should be reversed and a new trial, generally, granted.