Noonan v. Orton

The following opinion was filed at the June term, 1865 :

Dixon, C. J.

"We think that the demurrer must be sustained. The alleged supplemental matter is not material to the relief sought by the original complaint. It does not go to strengthen or prove the allegations of the original complaint, or show more conclusively that the plaintiffs are entitled to the relief there prayed. Such, we understand, must be the character and tendency of a supplemental complaint, whether the facts alleged be such as have occurred after the former complaint, or such as the party was ignorant of at the time his former pleading was made. Story’s Eq. Pl., §§ 332-337; Crompton v. Wombwell, 4 Sim., 628; 1 Van Santvoord’s Eq. Pl., (2d ed.), 312-313; Milner v. Harewood, 17 Ves., 145; Todd v. Gee, id., 274; Gwillim v. Stone, 14 Ves., 129; Jenkins v. Parkinson, 2 M. & K., 5. The most that can be said of the alleged supplemental matter is, that it shows that the defendant has broken the covenants of the lease, to compel the execution of whicnthis suit was instituted, and the plaintiffs seek satisfaction by way of damages. "We know of no precedent for this kind of pleading, and, on the contrary, the correct rule seems to be against it. Eor the breaches of the covenants the plaintiffs have an adequate remedy at law, and it is there that they should go for damages when the lease is executed.

By the Court. — Order reversed.

Downer, J., did not sit in this case, having been of counsel.

Byron Paine, contra,

insisted that the distinction between “ compensation,” where complete specific performance cannot be enforced, and damages for a breach of covenants where a specific performance can be enforced, is well established ; and that while a court of equity gives such compensation, it leaves the ’party to his action at law for such damages. Halsey v. Grant, 13 Yes., 77; Todd v. Gee, 17 id., 273. 2. This is purely a case of damages for a breach of the obligation to repair — what would have been a breach of the covenants, if the lease had been renewed. There is no precedent for this kind of pleading. The cases cited by counsel to show that supplemental bills are maintainable which are not in aid of the original case, relate to supplemental bills in the nature of bills of review, and not to supplemental bills “strictly so called.” Story’s Eq. PI. (Redfield’s ed.), § 337. 3. The renewal of the lease may be antedated for the express purpose of giving the action at law. Mundy v. Joliffe, 5 Mylne & Craig, 167. Or the party may be decreed to stipulate that in any action at law he will admit the covenants. Pam v. Coombs, 1 De G-ex & Jones, 34.