Ware v. McQuillan ( 1877 )

Suirall, C. J.,

delivered the opinion of the court.

The point attempted to be raised by the demurrer to the evidence is, that testimony that the goods were sold and delivered to W. B. McQidllan does not support the allegation that they were sold and delivered to William B. McQuillan. With the declaration, which charged the indebtedness of William B. McQuillan for goods sold, was filed an open account, headed “ W. B. McQuillan in account with James Ware & Co.” Was this a proper demurrer to evidence; and if it was not, what was the duty of the Circuit Court with respect to judgment, notwithstanding the plaintiff joined in it?

A general demurrer to a pleading is a demurrer to the facts shown in the pleading, and raises the question whether they are sufficient in law to maintain or abate or bar the action. A demurrer to evidence is a demurrer to the facts shown in evidence, and raises precisely the same question, whether the evidence is sufficient to maintain or bar the action. Gould’s Pleadings, e. 9, § 48. It is not admissible to state in a pleading the evidence which proves or conduces to prove the cause of action or the plea. So, also, in a demurrer to .evidence, it would be equally faulty to set out the evidence which had been put before the jury to support the declaration or the matter in bar. Whether testimony is relevant or not is a question of law ; whether it is sufficient or not is a question for the jury. The court, if. it should assume to investigate the evidence of facts, or presumptions arising thereon, would encroach on the province of the jury. It ought, therefore, in every instance, to decline to entertain and give judgment on the demurrer, unless there is a direct statement on the record of the facts proved. As was properly said in Fowle v. Common Council of Alexandria, 11 Wheat. 320, 322, the demurrer “ supposes, therefore, the facts to be- already admitted and ascertained, and that nothing remains but for the court to apply the law to those facts.” In an early case, Wright v. Pynder, Style, 34, s. c. Aleyn, 18, Roll, J., said: “ Matter of fact ought to be agreed in a demurrer to an evidence; otherwise, the court cannot proceed upon the demurrer; for the judges cannot try the matter in fact, for that were for the judges to give the verdict, which belongs to the jury to do.” See Mobile & Ohio Railroad v. McArthur, 43 Miss. 180, 186.

According to the old practice, where the party exhibited written evidence, as a bond, deed of conveyance or record, in support of his right, the demurrer could be interposed, because there was no danger of a variance. But if the evidence in support of the issue was parol, the party adducing it was not bound to join in the demurrer. The later practice allows the demurrer to any kind of evidence. If parol evidence, adduced in support of the issue, is certain and direct, the adverse party, by entering the evidence on the record, together with an admission that it is true, may demur, and his adversary will be obliged to join in it. The reason is, that the admission of the truth of the evidence, which is certain and direct, is an admission of the facts affirmed by it. Com. Dig. Pleader, Q., 10 ; Gould’s Pleadings, c. 9, § 63.

The demurrer, in this case, does not contain an admission of the facts, but recites the testimony of James Ware, one of the plaintiffs, and the only witness, which affirms the facts explicitly, certainly and directly. The real objection to the testimony is in the nature of a variance; that is to say, that the testimony showed that the account was due and 'owing by W. B. McQuillan to the plaintiffs; but it was not shown that he is the same person as William B. McQuillan. The declaration contains this statement: “ And herewith plaintiffs file their bill of particulars, marked Exhibit A.” The witness stated that this account (the same filed with the declaration) was correct. The indebtedness of William 'B. McQuil-lan is averred to be for goods and merchandise, and the particulars are filed with it. Under the statute, the plaintiffs could not prove any other indebtedness than that specified in the bill of particulars. The heading of the account might have been altogether omitted, and still the items of the account would constitute the subject of the indebtedness, and might have been proved on the trial. One of the causes of demurrer to the declaration in Robertsons v. Banks, 1 S. & M. 666, 670, was, that the plaintiff was not the same person called M. H. Banks in the note sued on. It was held that a mere variance could not be reached by demurrer to the declaration. The case of Cantley v. Hopkins, 5 Stewart & Porter, 58, is very much like this. The plaintiff complained of “ John Cant-ley,” and then proceeded to set out the note of the “ defendant,” being the note offered in evidence, signed “ J. Cantley.” The court said that here certainly was no discrepancy. So here William B. McQuillan is complained of as indebted for goods sold, as by bill of particulars filed. There is no more discrepancy in the heading of the account W. B. McQuillan than in the nóte J. Cantley. One was charged as debtor for the goods specified in the account; the other on account of the note. Moreover, the plaintiffs having made affidavit to the account, as provided in § 782 Code 1871, on producing the account and affidavit in evidence to the jury, were entitled to verdict. There was no counter affidavit. See Act March 6,1875 ; Acts 1875, p. 161. Again, the statute (Code 1871, § 623) declares that no variance between the allegation in a pleading and the proof shall be deemed material, unless it shall have actually misled the adverse party; and where it shall not be shown that such has been the effect, an immediate amendment may be made. Such objection must be .made, so that an immediate amendment may be had, if necessary.

The plaintiffs might have objected to joinder in the demurrer, but did not. In view of the statutes referred to, and the evidence as affected by them, we reverse the judgment, and give judgment here for the plaintiffs.

No ordered.