When this is permitted, a cause of action of such a nature in which the tort has been waived and the claim placed upon the footing of an implied promise may be joined with causes of action arising out of any other form of contract, express or implied; as, for example, where the first cause of action was for goods sold and delivered, and the second averred that the defendant had wrongfully taken the goods of the plaintiff, had sold them and received their price, and demanded judgment for this sum so retained by him. It has been recently held by the Supreme Court in New York, that where the plaintiff seeks to unite a cause of action merely upon contract with another cause of action originally for a tort, but in which the tort may be waived and the liability treated as springing from an implied promise, the pleading must show in some direct manner that the tort is waived, and that the claim is upon a promise; and to this end the plaintiff must not only allege the facts as they occurred, but must aver a promise to have been made by the defendant, in the same manner as an action of assumpsit was distinguished under the former system.2 A complaint contained three counts. The first alleged a sale by the defendants of certain county warrants drawn in their favor as payees, and facts constituting an implied promise or guaranty that these instruments were legal and genuine, but that they were not genuine, and had been adjudged invalid as against the county in an action brought upon them; the second sought to charge the defendants as indorsers, treating the instruments as negotiable notes; the third was for money had and received. These causes of action were held to be properly united, since they all arose out of contract.3 § 388. * 494. Additional Illustrations. A claim to recover possession of land, a claim to recover damages for its detention or wrongful taking, and a claim for the rents and profits thereof during the defendant's occupancy, may all or any of them be united in one action: but the plaintiff is not compelled to do so; 1 Hawk v. Thorne, 54 Barb. 164; Leach v. Leach, 2 N. Y. S. C. 657. See also Freer v. Denton, 61 N. Y. 492; Logan v. Wallis, 76 N. C. 416. Fifield v. Sweeney, 62 Wis. 204. 4 Vandevoort v. Gould, 36 N. Y. 639, 645; Livingston v. Tanner, 12 Barb. 481; Holmes v. Davis, 21 Barb. 265; 19 N. Y. 488; Tompkins v. White, 8 How. Pr. 520; Armstrong v. Hinds, 8 Minn. 254, 256; 2 Booth v. Farmers' & Mech. Bk. of Walker v. Mitchell, 18 B. Mon. 541; Burr Rochester, 1 N. Y. S. C. 45. 3 Keller . Hicks, 22 Cal. 457. v. Woodrow, 1 Bush, 602; Sullivan v. Davis, 4 Cal. 291; Langsdale r. Wool he may sue separately on each.1 An action to compel the specific performance of a contract to convey land is, within the meaning of the statute, an action to recover possession of lands, and may be united with a cause of action for damages on account of defendant's delay in performing the contract.2 In like manner, a claim to recover possession of chattels may be united with a claim for damages for their taking or detention.3 § 389. * 495. Causes for Injuries to Property. Illustrations. Causes of action for injuries to property form a distinct class, and the generality of this language permits the union of claims arising from injuries of all kinds, whether with or without force, whether direct or consequential, and whether to real or to personal property. Singularly enough, injuries to the person are placed in the same group in most of the States, rather than in a class by themselves, or with injuries to character. The following are examples of causes of action arising from injuries to property which have been held properly united in a single suit: in an action against a railroad company, (1) for damages resulting from the unlawful throwing down the fences on plaintiff's farm, whereby cattle entered and destroyed the growing crops, (2) for damages caused by water thrown on to the farm by means of an embankment, (3) for damages from earth piled upon the farm, obstructing the passage of teams and the free use of the land, (4) for damages occasioned by the killing of cattle by means of passing engines; 5 len, 120 Ind. 16; Hiles v. Johnson, 67 Wis. 517; Black v. Drake, 28 Kan. 482; Fletcher v. Brown (Neb. 1892), 53 N. W. 577. A claim to recover land, with damages for withholding the same, and a claim of the rents and profits for its use, are distinct causes of action, and evidence to prove the latter is inadmissible under a complaint which does not contain such cause of action, but simply alleges the former. Larned v. Hudson, 57 N. Y. 151; Pengra v. Munz, 29 Fed. Rep. 830. But compare §*454, ante. It has been held that a claim to recover possession of one parcel of land cannot be joined with a similar claim in respect to another and distinct parcel. Holmes v. Williams, 16 Minn. 164, 169. See, however, Beronio r. Southern Pac. R. Co., 86 Cal. 415. See also Merrill v. Deering, 22 Minn. 376; Lord v. Deering, 24 id. 110; Hackett v. Carter, 38 Wis. 394; Spahr v. Nicklaus, 2 Worrall v. Munn, 38 N. Y. 137. A demand for a specific performance against A. cannot be united with a demand to recover possession against B. Fagan v. Barnes, 14 Fla, 53, 56. 8 Pharis v. Carver, 13 B. Mon. 236. 4 [Thelin v. Stewart (1893), 100 Cal. 372, 34 Pac. 861, holding that a cause of action for an injury to the person cannot be united with a separate cause of action for a subsequent injury to property, and that a demurrer to a complaint on this ground, where such causes of action are so set out, will be sustained. Code Civ. Proc., § 427.] 5 Clark's Adm. v. Han. & St. Jos. R. Co., 36 Mo. 202; and see Tendesen v. Marshall, 3 Cal. 440. an action by a mine-owner, alleging (1) injuries caused by the bursting of defendant's dam, negligently constructed, whereby gold-bearing earth was washed away and (2) damages resulting from the delay and hindrance in working the mine; where the complaint contained two counts, the first being for trespasses done to the land prior to its conveyance to the plaintiff, the claim having been assigned to him, and the second alleged that the plaintiff was owner and in possession of the land, that the defendants were about to enter upon the same and quarry and carry away minerals therefrom, and prayed an injunction restraining the trespassers, the two causes of action were held to be properly joined, although one was legal and the other equitable.2 On the same principle, in a suit to recover possession of land, a separate cause of action may be added to restrain a threatened trespass and commission of waste.3 A cause of action for deceit practised in the sale of chattels may be joined with one for the unlawful taking and conversion of other goods; the claim of damages for the fraud in such a case arises from an "injury to property' within the meaning of the codes.1 § 390. * 496. Malicious Prosecution and Slander or Libel. Within the class of "injuries to character" fall not only actions for libel and for slander, but those for malicious prosecution; the gist of the latter, according to the old authorities, being the wrong done to the plaintiff's reputation. 5 A cause of action for malicious 2 More v. Massini, 32 Cal. 590, 595, per Shafter J. The opinion in this case is instructive. 8 Natoma Water Co. v. Clarkin, 14 Cal. 544. Cleveland v. Barrows, 59 Barb. 364, 374, 375, per T. A. Johnson J. See also De Silver Holden, 50 N. Y. Super. Ct. 236. 1 Fraler v. Sears Union Water Co., 12 expressly authorizes a party to unite in Cal. 555. the same complaint several causes of action... where they arise out of' and belong to one of the several classes therein mentioned and affect all the 'parties to the action' and do not require different places of trial' and are 'stated separately.' R. S. 1878, sec. 2647. One of the classes so named therein is 'injuries to character.' Id. Under this statute this court has held that a plaintiff may unite in the same complaint a cause of action for libel and another cause of action for slander. Noonan v. Orton, 32 Wis. 106. It logically follows that two or more separate causes of action for slander may be united in the same complaint. In the case at bar we are clearly of the opinion that only one cause of action is alleged, or attempted to be alleged. True, the complaint sets forth three several excerpts Joinder of a cause of action for trespass to real property with one for assault, Craig v. Cook, 28 Minn. 232; waste, and deceit in the sale of personalty, Gilbert v. Loberg (Wis. 1892), 53 N. W. 500. 5 [Fred v. Traylor (1903), - Ky. 72 S. W. 768, Hellstern v. Katzer (1899), 103 Wis. 391, 79 N. W. 429, in which the court said: "One ground of demurrer as signed is that several causes of action have been improperly united. The statute prosecution may therefore be joined with one for libel or slander, or both.1 cases. § 391.497. Special Cases. The following are some special In Wisconsin a complaint was sustained in an action by a creditor, one count of which set up a cause of action against a bank to recover certain property or its value, and another count alleged a cause of action against delinquent stockholders of the corporation. Where a complaint contained two causes of action, the first to enforce an implied trust alleged to have arisen in favor of the plaintiff on the conveyance of lands from himself to the defendant, and the second to enforce a vendor's lien on the same lands, they were held to be properly united, since both arose out of trusts, the one by virtue of a contract, and the other by operation of law. In another equitable suit the joinder of four causes of action was sustained, where the first was to reform a certain trust deed by inserting the name of a trustee, and to foreclose it when reformed, the second was to foreclose a mortgage upon the same land, while the third and fourth were to enforce certain charges which were liens on the land, and which the plaintiff had been compelled to pay in order to protect his security. § 392.498. Rule in Iowa. All of the foregoing cases were decided under State codes which contain substantially the same. provisions and the same division into classes. In Indiana and Iowa, it will be remembered, the corresponding sections of the from the discourse complained of; but it alleges that they were each and all made at the same time and place, in the same connection, and that the language employed in each of such excerpts was understood by the persons then and there present in the congregation, or by the most of them. It is true that in discussing the subject of damages it has been said that where the article complained of contains several expressions, each of which is libellous per se, each such expression is, in legal effect, a separate cause of action. Candrian v. Miller, 98 Wis. 168. But that does not mean that each such expression must necessarily be pleaded as a separate cause of action." Scott v. Flowers (1900), 60 Neb. 675, 84 N. W. 81, in which it was said a cause of action for false imprisonment may be joined in the same petition with a count for malicious prosecution, both causes of action arising out of the same transaction.] 1 Martin v. Mattison, 8 Abb. Pr. 3; Hull v. Vreeland, 18 Abb. Pr. 182; Watson v. Hazzard, 3 Code Rep. 218; Shore v. Smith, 15 Ohio St. 173; Hargan v. Purdy (Ky. 1892), 20 S. W. 432 (slander joined with libel). 2 Seaman v. Goodnow, 20 Wis. 27, sed qu. 3 Burt v. Wilson, 28 Cal. 632. See also Price v. Brown, 10 Abb. N. Cas. 67 (causes of action arising out of breach of trust may be united in a suit against the trustee's executors). Burnside v. Wayman, 49 Mo. 356. The "trust deed " mentioned was, in fact, a form of security used in several of the States instead of a mortgage. See also Williams v. Peabody, 8 Hun, 271; Hay v. Hay, 13 id. 315. statute are peculiar, and more latitude is permitted, especially in the latter State, in the joinder of unlike causes of action. As in Iowa all legal or equitable causes of action may be united, a claim arising upon contract may be included in the same petition with one for damages resulting from any kind of tort. And where twenty-two different parcels of land belonging to the same owners had been conveyed to the plaintiff by as many separate tax deeds, he was permitted to foreclose all these deeds, and thus cut off the owner's right of redemption in one action. In construing the sections of the Iowa code which give the trial court a discretion in reference to the joinder of unlike causes of action, and which authorize it to compel an election, or to strike out on the defendant's motion, it is held that the provision for compelling the plaintiff to elect applies only to a case where the various causes of action set forth in the petition are merely different modes of stating one and the same demand, and the defendant must file an affidavit showing this fact as the basis of his motion; but the court may, on defendant's motion, strike out a cause of action which it deems impossible or inconvenient to try with the others, but in no case is a demurrer the proper remedy.3 § 393. * 499. Illustrations from Indiana and California. Indiana, a cause of action by a wife for an absolute divorce was held properly joined with a cause of action to compel the specific performance of an agreement to convey certain lands to her made 1 Turner v. First Nat. Bk. of Keokuk, 26 Iowa, 562. See also Mendenhall v. Wilson, 54 Iowa, 589 (trespass and contract); Thorpe v. Dickey, 51 id. 676; Stevens v. Chance, 47 id. 602. 2 Byington v. Woods, 13 Iowa, 17, 19. See, per contra, Turner v. Duchman, 23 Wis. 500. [Campbell v. Equitable Loan & Trust Co. (1901), 14 S. D. 483, 85 N. W. 1015. Under the statute allowing joinder of causes of action to recover real property, it is proper to join five causes of action to set aside five tax deeds on five separate tracts of land.] 8 Reed v. Howe, 28 Iowa, 250, 252; Iowa & Minn. R. Co. v. Perkins, 28 Iowa, 281. In the following cases, the causes of action were held to have been improperly joined: an action by two plain In tiffs for the destruction of chattels owned by them jointly, and also for an assault and battery committed upon each; but, no motion having been made to strike out, the irregularity was thereby waived: Grant v. McCarthy, 38 Iowa, 468; an action by two persons not partners for a slander of each, but on the trial the case was severed, and the trial proceeded on behalf of one alone, and this was held proper: Hinkle v. Davenport, 38 Iowa, 355. For further illustration, see Faivre v. Gillan (Iowa, 1892), 51 N. W. 46. [See the following recent Iowa cases: Devin v. Walsh (1899), 108 Ia. 428, 79 N. W. 133; Prader v. Nat. Acc't. Ass'n. (1899), 107 Ia. 431, 78 N. W. 60; Clayton County v. Herwig (1897), 100 Ia. 631, 69 N. W. 1035; Jenks v. Lansing Lumber Co. (1896), 97 Ia. 342, 66 N. W. 231.] |