Burkham Bros. v. Spiers

BBIOKELL, 0. J. The complaint contains two counts, and, as amended, under our system of pleading, averred only an account stated between the plaintiff and the defendants, and that the plaintiff had done work and labor for the defendants, for which he was entitled to recover the value of his services. A radical error, pervading the instructions of the court, is, that the action was treated as if founded on a special contract between plaintiff and Pierce, Morrison & Go., which was subsequently adopted by the defendants, and violated by them. The counts of the complaint are only the common counts in assumpsit at common law, which are abbreviated, and introduced into the forms of pleading recognized by the Code. No change was intended in the old rule, that a recovery cannot be had under a common count, 'when [550] the proof discloses a cause of action the proper subject of a special count. • The instructions of the jury are subject to criticism; but, as under the present pleading, the plaintiff has no right of recovery, we say only that the court erred in refusing to charge the jury, if they believed the evidence, they should find for the defendants. The judgment is reversed, and the cause remanded. Stone, J., not sitting.