Boylston v. Sherran

WALKER, J. — The contract described in the complaint is certainly different from that given in evidence, in that the latter requires the plaintiffs “ to open the track,” and makes that one of the duties for the discharge of which the defendant was to pay four hundred and sixty dollars, while the former makes no such exaction. If by opening the track the parties meant cleaning off the ground where the ditch was to be dug, we can not say that the duty, required in the contract described, of cutting the ditch, included the cleaning off the ground, or opening the track. They are distinct acts, and the parties might well contract for the performance of both acts. The contract described, therefore, omitted one of the terms contained in the contract given in evidence, and the latter was variant from the former. 2. It is manifest that section 2151 of the Code is designed to create a presumption of “ the loss, destruction and contents ” of the written instrument described in the complaint, and not of another and different instrument. The court could not, under that statute, allow a recovery upon a different contract from that described, because the plaintiffs had made an affidavit, which accompanied the complaint, “ of the loss, destruction and contents ” of the instrument sued upon. 3. The common counts are not a part of the complaint. They are not mentioned, except in a memorandum, following the complaint in the transcript, in the following words: “ Common counts added by consent.” These words are not signed by the parties, or counsel; and there is nothing in the record which will authorize us to infer that they were by consent regarded as standing in the place of the common counts, or that they were treated as indicating in any manner a part' of the complaint. Strange v. Powell, 15 Ala. 452. We can not look to those words, in determining what was the complaint; and are constrained to hold, that it contains only the special count. [542] The evidence, being inadmissible under the only count in the complaint, should have been excluded; and for the error in admitting it, the judgment must be reversed, and the cause remanded. 4. The contract on the part of the defendant was for the payment of money by him, and was not one upon which'it was necessary to assign a special breach. Therefore, section 2235 is not in the way of a joinder of the common counts with the count on the contract. It will be competent, on the return of the cause to the circuit court, for the complainant, with the permission of the court, to amend the complaint, so as to make the special count correspond with the facts; and also, if desired, to add the appropriate common counts. The judgment is reversed, and the cause remanded.