Perry v. Stayton

Boyce, J.

delivering the opinion of the court:

[1] The court has considered the questions raised by the demurrer filed. Counsel for defendant concedes that each count standing alone is good except the sixth and seventh, it being alleged that the last two counts are based on a contract of sale of goods, wares and merchandise without consideration. These two counts are practically in the language of Ckitty, and show a sufficient consideration.

[2] It was urged by counsel for defendant that the plaintiff had by the several counts averred several causes of action which are inconsistent. In Gould's Pleadings, Chap. 4, § 3, it is said:

“In all cases, however, in which there are two or more counts —whether there is actually but one cause of action, or several— each count purports, upon the face of it, to disclose a distinct right of action, unconnected with that stated in any of the other counts: So that, upon the face of the declaration, there appear to be as many different causes of action, as there are counts inserted. And, therefore, whether a plaintiff, whose declaration contains more than one count, claims a recovery upon one right of action only, or upon several, cannot appear, except in evidence. Practically, however, the defendant can seldom be left in doubt on this point.”

Mr. Morris’ contention in support of his declaration is sustained by Mr. Gould in the following section:

"One object proposed in inserting two or more counts in one declaration, when there is in fact but one cause of action, is, in some cases, to guard against the danger of an insufficient statement of the cause, where a doubt exists as to the legal sufficiency of one or another of two or more different modes of declaring. But the more usual and proposed, in inserting more than one count, in such a case, is to accommodate the statement of the cause, as far as may be, to the possible state of the proof to be exhibited on the trial: or to guard, if possible, against the hazard of the proof’s varying materially from the statement of the cause of action: So that if one or more of the several counts should not be adapted to the evidence, some other of them may be so.”

We think the defendant here cannot be left in any doubt, because the plaintiff has annexed to his declaration a bill of particulars. The declaration and the several counts therein are good.

We overrule the demurrer.

At the election of defendant’s counsel let judgment of responeat ouster be entered.

At the trial, a witness for the defendant was asked by defendant’s counsel, “Do you know the general reputation of Joseph Perry, the defendant, in this community for honesty and fair dealing?” This was objected to by counsel for plaintiff as improper and irrelevant in a civil case. The objection was sustained. The facts and questions presented appear in the charge of the court.

Rice, J.

charging the jury:

Gentlemen of the jury: — This controversy concerns certain goods which the plaintiff, Thomas N. Stayton, claims he sold and delivered at Eighth and King streets, in this city, to be charged to and paid for by Joseph Perry, the defendant.

The plaintiff, who had a place of business at Third Street market, claims that Joseph Perry, the defendant, in the" last part of 1910 or first part of 1911, with one Tigani came to the plaintiff’s place of business and stated to him that he, Perry, was about to open another place at Eighth and King streets, and that Tigani was to be in charge of the store at Eighth and King streets, and the goods bought for that place were to be charged to Joseph Perry, the defendant, and he further claims that the defendant is indebted to him in the sum of one hundred and forty-eight dollars and fifty-nine cents, with interest thereon from June 1, 1911, for goods sold to the account of Joseph Perry and delivered at Eighth and King streets, on various days from May 9, 1911, to May 27, 1911.

The defendant claims that he did go, during the month of December, of last year, with one Tigani, to the plaintiff’s place of business, and request the plaintiff to extend the time for payment of a bill then owed by Tigani, and then Tigani would pay the same; that Tigani was not a stranger to the plaintiff, and that he did not take Tigani to the plaintiff and introduce him to be the person in charge of a place to be opened by him, the defendant, at Eighth and King streets; and he further claims that he did not buy the goods in question, nor did he direct that they be charged to his account, and that he was not the owner of the business at Eighth and King streets.

[3] The questions in this case are of facts and the issue is a very narrow one. The matter for your determination is whether Joseph Perry, the defendant, either himself or through Tigani, did or did not purchase the goods, the subject of this suit, delivered at Eighth and King streets, by the plaintiff and for which the plaintiff has not been paid.

If you believe from the evidence that Perry did purchase the goods in question of the plaintiff, or that he authorized the plaintiff to charge to him, Perry, goods ordered by Tigani for the place at Eighth and King streets, then your verdict should be for the plaintiff for the sum of one hundred and forty-eight dollars and fifty-nine cents with interest from June 1, 1911.

But if, on the other hand, you should find from the evidence that Joseph Perry, the defendant, did not buy the goods in question, either himself, or through his authorized agent, or did not authorize the plaintiff to charge to him the goods ordered by Tigani of the plaintiff and delivered at Eighth and King streets, your verdict should be for the defendant.

The sole question really for your determination from the evidence is whether the defendant entered into an original undertaking with the plaintiff, that he the plaintiff should charge to the defendant’s account, goods ordered by himself or by Tigani to be delivered by the plaintiff at Eighth and King streets.

If you find that he did enter into such an undertaking, your verdict should be for the plaintiff; otherwise, it should be for the defendant. Where the evidence is conflicting, as it is in this case, it is for you to reconcile it if you can; if you cannot, then you should give credence to that part of the testimony which you believe most worthy of belief, and reject that part which you consider unworthy of belief.

[4] Your verdict should be determined from the preponderance of the evidence, and by a preponderance of the evidence is meant the weight of the evidence, not merely the number of witnesses called and examined. The weight of the evidence is for your determination.

Verdict for plaintiff.