| Nev. | Jul 1, 1865
full Bench concurring.
This is an action in tbe nature of an action in assumpsit. Tbe complaint contained three counts, One for money expended to amount of four thousand six hundred and sixty-five dollars and eighty-seven cents in repairing defendant’s mill; second, a count for percentage of four hundred and sixty-six dollars and fifty cents for disbursing the first named sum; third, a count for five hundred dollars for services rendered.
The complaint then says plaintiff “ has been paid on the same [sum] so advanced by him for said defendant the sum of two thousand six hundred and fifty dollars and twelve cents,” which being deducted from the aggregate amount of the three counts (five thousand six hundred and thirty-one dollars and thirty-seven cents), leaves two thousand nine hundred and eighty-two dollars and twenty-five cents, for which he claims judgment.
The cause was tried before a jury; verdict and judgment for the plaintiff for the whole amount of the demand. The defendant moved for a new trial, which was refused, and lie appeals to this Court, both from the order refusing a new trial and from the judgment rendered in the case.
Appellant’s first assignment of error is that the Court below erred in overruling a demurrer to the complaint. The demurrer was on the ground that the complaint did not state facts sufficient to constitute a cause of action. The defect complained of is this: that whilst the suit is for money expended, commission on the same and for services, there is no allegation in the complaint that the money was expended for the use and benefit of defendant, tiqv that it was done at his instance and request. The same objection applies to the count for services. This is certainly a serious objection to the complaint.
It would be better for counsel always to use those technical words, the exact import of which have been long established, than others of doubtful import. In this complaint there are Other things stated from which it may very clearly be inferred that the labor and expenditure were for the use and benefit of defendant, although these words are not used. It is not, how
The second error complained of is in regard to the insufficiency of the proof to sustain the verdict, a point which need not be further noticed than as it is connected with the giving a certain instruction which we will have occasion to notice presently. The third* assignment of error, that the suit being for money expended in repairing a mill, there could be no proof as to the money expended for running a mill, will also be noticed in connection with the same instruction.
The Court among other instructions, very properly gave the following: “ This is an action to recover money advances made by plaintiff as agent for defendant, his principal, in and about the repair of the Mariposa mill, belonging to defendant, from lltlx March, 1863, to some time in June following, when the agency ceased.
“ Under the pleadings, all the plaintiff can recover in this action as advances, is the amount of money which he properly expended in and about the mill in repairing the same and putting it in proper or suitable running and working condition so as to render it saleable or profitable to rent.
“ In the bill of items attached to and made part of the complaint, plaintiff has included charges such as quicksilver, wood, and other expenses incurred in working the mill, which under the averments in the complaint, cannot be recovered in this action; and therefore in determining upon your verdict you will exclude from consideration all such items as do not properly pertain to the necessary repairs of the mill itself.”
But strangely enough, after giving this instruction, which was fully warranted by the complaint, the bill of particulars referred to and the evidence in the case, the Court also gave the following instructions:
u That the jury, in estimating the damages, may offset the*468 credits given against any item or items in tlie account, not as charged for repairs, and allow what appears properly charged for repairs independent of any credits.”
It will be rdmembered that the complaint charges that plaintiff advanced and expended four thousand six hundred and sixty-five dollars and eighty-seven cents in repairs, and that lie was paid on the sums thus advanced two thousand six hundred and fifty dollars and twelve cents,,
• On the trial, and even by inspection 'of the bill of particulars before trial, it appeared that a considerable part of this four thousand six hundred and sixty-five dollars and eighty-seven cents was not expended in repairing defendant’s mill.
All proof in regard to these expendituaes was, in effect, and properly, too, excluded from the consideration of the jury. Under the view of the case presented by the first instruction, (and we think that ivas the proper view), no proof could properly be introduced by plaintiff in regard to those expenditures not connected with the repairs of the mill, nor anything in rebuttal by the defendant.
Yet in order to allow the jury to give the pilaintiff his entire demand, they are instructed that they may offset the credits given in the complaint itself by these charges in the bill of particulars, which are not propierly the subject of piroof. This is certainly erroneous. It is in effect deciding that the plaintiff, who sues for money expended in repairing a mill, and files a bill of particulars showing that the amount claimed was expended partly for repairing a mill, partly for various other objects, such as buying wood, quicksilver, piaying interest on notes, etc., may recover the whole amount of his bill by proving that the class of items connected with the repairing of the mill are correctly charged. The other items of his bill would thus be recovered, not only without proof, but without any allegations in the complaint that such advances had been made. Eor there can be no practical difference between a direct recovery of these items and an allowance ®f them as an offset to credits which are by the complaint admitted to have been piaid on the account for repairing the mill.
There are other points in the case not necessary to be noticed.