Rabun v. Cage

This case was tried hy a jury in the court below. Ludeling, C. J. This case was before us in 1869, and we then remanded it because we thought the evidence in support of the claim against an estate unsatisfactory, when taken in connection with tho evidence of the defendant, tending to show that plaintiff had admitted that the balance due him was about $1500. On the second trial the defendant offered J. Y. Allen to prove that shortly before the death of Cage, plaintiff, who had come to see Cage to have a settlement, said that Cage had had ninety-eight hales of cotton belonging to plaintiff; that Cage had sold it for about $10,000, and that that would make “them very near even, possibly [676] lacking $1000.” And defendant also offered C. W. Allen to prove that soon after the death of Cage, Rabun, when speaking of the situation of the pecuniary relations existing between himself and Cage, stated ■deceased and he were about even. This testimony was objected to on the ground “that it was irrelevant, illegal and for the purpose of establishing a fact not alleged in the pleadings, and also for the purpose of impeaching the testimony of Hodge Rabun without having laid a basis therefor.” The objection was sustained on the ground that “the evidence tended to prove extinguishment [of the oblr ations] without pleading it,” and the defendant took a bill of exceptions. The answer was a general denial and a plea in reconvention. The suit is for an account on the part oí Cage as agent for Rabun, and tor money loaned him. The testimony tended to show that plaintiff had admitted that the agent had accounted for or liquidated the claims for money received tor the cotton and loans, except a comparatively small portion thereof, and it should have been received. Evidence of the same declarations had been received on the former trial, and therefore the plaintiff could not pretend to be taken by surprise. The evidence offered by the plaintiff to prove that Cage had sold cotLon belonging to plaintiff, and that he had not accounted for it, was objected to on the ground that the allegations of the petition did not justify the proof that they sued for the price of the cotton sold to Cage, and not for an account. The rule is elementary that the proof must correspond to the allegations. And it can not be denied that the pleadings in this case are inartistic. But one of the most valuable features of our systein of jurisprudence is the simplicity with which parties are permitted to biing their rights beiore the tribunals of justice. The technicalities which in other countries embarrass and obstruct the progress oí justice are unknown to it. All it requires is that each party shall so state his grounds of attack or defense that the adversary shall not be taken unawares, and that the judgment which may be rendered will enable him, for or against whom it has been given, to protect himself by the plea r£S judicata. These are the only objects to be obtained by pleading. It is manifest that the defendant could not have been surprised by the evidence which had been received on a farmer trial, and it is evident a judgment in the case would be a bar to any other action for an account for the proceeds of the cotton. 5 An. 531; Frierson v. Erwin, 10 An. 528; 12 An. 795, Lowry v. McCoy. As we can not weigh the evidence of J. Y. Allen and C. W. Allen, which is not before us, we are constrained to remand this case again. It is therefore ordered that this case be remanded to the lower court • to be tried anew, in conformity to the views herein expressed, and that the plaintiff and appellee pay costs of this appeal.