27 Del. 293 | Del. Super. Ct. | 1913
delivering the opinion of the court:
The pro-narr. in this case consists of two special counts and five common counts. The first special count is in assumpsit, in which an express contract for the sale and delivery of goods and wares is stated by its substance and effect. The second special count is in covenant, stating by its tenor a contract under seal, likewise for the sale and delivery of goods and wares, wherein
The counts of indebitatus assumpsit may relate to the matter first declared upon by special assumpsit; they certainty cannot relate to the matter next declared upon in covenant.
Whatever may have been the pleader’s motive in combining these various and to some extent conflicting counts, it is certain, as this is an action on appeal from a judgment rendered by a justice of the peace, that each one of the seven counts must relate to and be a declaration of the precise cause of action tried below. What was the cause of action below and how many were there?
The transcript of the justice, upon which the appeal is founded, discloses that the action below was in “assumpsit” and the cause of action was “a contract for goods sold and delivered”, and fails to disclose whether the contract was express or implied, written or oral, and if written, whether it was under seal or not under seal.
The fact that the justice in this case may have entitled the action assumpsit when in law it may have been covenant, is unimportant on appeal so long as the instrument here declared upon in covenant is the same instrument upon which the judgment below was rendered, and so long as the identity of the cause of action on appeal with the precise cause of action below is disclosed and preserved by the pro-narr. But the identity of the cause of action above with that below has been destroyed in this case by the plaintiff declaring in two forms of action upon the one
As the narr. contains counts in different forms of action and as it fails to disclose with certainty that the cause of action declared upon above is the precise cause of action tried below, the demurrer is sustained.