80 P. 1061 | Or. | 1905
delivered the opinion.
The rule is well illustrated by a case from California. The complaint was filed, containing two counts — one for services performed on a promise to pay therefor a definite sum, and the other for the same services at their reasonable worth — and, upon a motion to require plaintiff to elect, the supreme court, sustaining the ruling of the trial court, said that the plaintiff may set out the facts “in two separate forms when there is a fair and reasonable doubt of his ability to safely plead them in one mode only”: Wilson v. Smith, 61 Cal. 209, 210. So, in Wisconsin, Whitney v. Chicago, etc. Ry. Co. 27 Wis. 327, where ■ the court for a like reason held it to be allowable for the plaintiff to charge the defendant on separate grounds in the capacity of a carrier and a warehouseman. So it was in Bishop v. Chicago & N. W. R. Co. 67 Wis. 610, 616 (31 N. W. 219), the court saying : “ ‘Since it is no longer necessary, in order to protect the rights of .the plaintiff, that he should set forth in different counts the same cause of action — variances between the allegations and the proofs being disregarded unless they actually mislead the adverse party to his prejudice upon the merits — the practice of so doing is disapproved of, because it is not in harmony with the spirit of the Code.’ An exception to this method of pleading is recognized by this court in a case when the plaintiff cannot know beforehand the precise nature and limits of the defendant’s liability to him, and in such case it is permissible to allow the plaintiff to state his cause of action differently in different counts.” Upon the other hand, an election was re
These considerations affirm the judgment of the trial court, and it is so ordered. Affirmed.