Maupay v. Holley

Maupay v. Holley. 1. Each count in a declaration- is considered as the statement of a distinct cause of action, and where all arc negatived by plea', the plaintiff is entitled* to recover, by proving the allegations of either. THIS was an action- of asmittpsit in- the County Court of Mobile, by the plaintiff in error, to recover damages of the defendant for the failue to deliver according to his contract, twenty thousand mulberry trees, of the kind called 'in'oriis multicau-lis. The declaration contains twe) counts, in each of which the contract- instated differently. The cause was submitted to the jury,- who3 returned a verdict for the defendant. On the trial, the Judge sealed a bill of exceptions, at the instance of the plaintiff which sets out none of the testimony, but merely states sever-al--charges’given to the jury. The'only charge considered in the opinion of this Court, is in the following words: “ The plaintiff, however-, in order to recover, must make his testimony and ■ declaration correspond; all the testimony going to prove" facts-not- recited in-the declaration, must be excluded, and vice versa;' if he fails to prove any of the counts set forth in his declaration, he cannot recover'” A judgment was rendered upon the verdict, and the plaintiff thereupon, sued a writ of error to this Court. Stewart, for the plaintiff in error. Campbell, for the defendant. [MAJORITY — COLLIER, C. J.] COLLIER, C. J. There was no demurrer to the declaration, and the plea consequently, did not contest the legal sufficiency of either count. Where a declaration contains several counts, each count is considered as the statement of a different cause of action; and where issue is taken upon all, the plaintiff is entitled to recover upon proving the allegations of either. There can be ho doubt, that where the defendant negatives, by a plea, the cause of action set out by the plaintiff, in order to recover, the latter must sustain his declaration, and that this can only be done by proof corresponding with its allegations.— But if it discloses several causes of action, there can be no necessity for proving each of them. In the case at bar, the Court charged the jury, that “if he (the plaintiff) fails to prove any of the counts set forth in his declaration, he cannot recover.” This charge is directly contrary to law. The bill of exceptions is so exceedingly imperfect, that we cannot understandingly examine the other charges excepted to. The judgment is reversed, and the cause remanded.