James Chambers vs. Isaac G. Lathrop

James Chambers vs. Isaac G. Lathrop. July, 1841. It is not necessary to have the .damages assessed by a jury where the plaintiff is entitled to recover a fixed amount, or one which may be ascertained by arithmetical computation. On demurrer to declaration containing more than one count, if either count is good the demurrer will be overruled. This was an action of covenant, brought by Lathrap against Chambers, to which there was a general demurrer and judgment thereon for the plaintiff. And the.case was brought up here on the following assignment of errors: First. That the court erred in not sustaining the demurrer. Second. That the court.entered judgment on the demurrer, and assessed the- damages without the intervention of a jury. Woons and Staeh. for,plaintiff. Lowe for defendant.. For the defendant it was contended that where there is a .general demurrer to a declaration containing several counts, it must be overruled if any one of those counts be good. The second count in the case before us, we regard as being substantially good and well pleaded. If so, the court very properly overruled the demurrer, even supposing the first to be bad. This, then, would leave the declaration with both its counts in its original condition, entire and unaffected by the demurrer, subject to the- future action of the court. But we by no means concede that the first count is defective. It is the every day’s practice of the courts to suffer a party bringing an action on a bond or agreement, to assign as many or few breaches as he chooses, and only to set out so much of the instrument as may be necessary to exhibit its condition or conditions the breach or breaches of which are complained of. In this case the- plaintiff avers in his first count all that is necessary to show a cause of action, the defendant’s consequent liability, and his failure to discharge the same. We can find no substantive defect in either count; such as a general demurrer will reach. The counsel for the plaintiff in error have -not furnished us the points they expect to raise under the general demurrer. Whether the cause •assigned for error was good, depends on another question — whether the judgment was for unliquidated or stated damages? We claim it to be the latter. In both Counts of the declaration the plaintiff seeks to recover seventy-five dollars, and that alone, upon a clear agreement which stipulates for the payment of that sum certain as a liquidated satisfaction fixed and agreed upon by the' parties. Then the damages. were certain and stated, and formed an easy basis for the court to render judgment upon. The rule as to what are liquidated and what are unliquidated damages, is laid down in the 4 Am. Com. Law p. 119. If the damages are stated, there was no error in rendering judgment without a writ of inquiry. 1 Blackford’s R. 145; lb. 342, 346, 357; 4 Am. Com. Law, 109; 2 Saunders’ R. 107, note (2.) Holdipp vs. Otway; Doug. R. 316. The judgment was obtained before the Iowa Statute was enacted. [MAJORITY — BY THE COURT.] BY THE COURT. The declaration in this case consists of two eouhts: to which there was a general demurrer. This being overruled, judgment was rendered for the plaintiff for seventy-five dollars and costs, without the intervention of a jury. It is assigned for error, in the first place, that the demurrer should have been sustained. If either count of the declaration were good, the demurrer was properly overruled. Although neither of these counts seems drawn up with much professional accuracy, and although the first is peculiarly defective, the second .appears sufficient in substance to sustain the judgment already rendered. The other error assigned is, that judgment was rendered on the demurrer without empannelling a jury to assess the damages. There certainly seems no necessity for the intervention of a jury where the plaintiff is entitled to recover a fixed amount, or one which may be ascertained by arithmetical computation. This case seems to stand in such a predicament. The whole burden of the declaration is a claim of seventy-five dollars, to which, by the result of the proceedings, the plaintiff has become actually entitled. The judgment below will therefore be affirmed.