Title: The Severance for Trial of Liability from Damage
Abstract: In eager quest for the improvement of our civil procedure, we scan the innovations attempted in one or another of our states; we even search abroad.Yet, all the while, within each of our states, in our daily practice in the equity courts, we encounter and accept as a matter of course, without thinking of extending it to trials at law, a trial procedure more rational, more expeditious, and better calculated to ensure justice than our procedure at law.In the equitable action for an accounting, where, as is almost always the case, the action involves the two separate issues of (i) the existence of liability and (2) the pecuniary extent of such liability, we try these issues in sequence, not trying the second at all if the first is determined in the negative; 1 in an action at law, we almost invariably try the two issues simultaneously.We litigate at length and in the uttermost detail, often with the aid of expert witnesses specially called, the question of the extent of the plaintiff's alleged damages and the sum required to make him whole, before it has even been determined that the defendant is in any event liable for a farthing.The process is inherently so absurd, so at variance with the procedure followed in investigations in every other department of life, that only our lifelong inurement to it makes it possible for us to accept it without question.It requires, perhaps, an actual experience of the contrast between law and equity on this head to bring us to an appreciation of the situation.In a courtroom in a metropolitan center, an equity trial is proceeding.The plaintiff alleges that his relation to the defendant, ostensibly that of employe, was in fact that of co-partner, and demands an accounting.The trial occupies the better part of a day, the sole issue being whether the plaintiff was a co-partner.At its conclusion, the judge announces that in his opinion the plaintiff has failed to establish his case, and dismisses the complaint on the merits.The trial is at an end.On the same day, in an adjoining courtroom, there begins the trial of an action at law.The plaintiff, a selling agent, alleges that his arrangement with the defendant manufacturing corporation, which was wholly oral, contemplated that he should have exclusive selling rights in his territory on certain lines of merchandise, and that the manufacturer, in breach of the IA.