3 Mich. 460 | Mich. | 1855
By the Court,
The only question presented by this case, for the opinion of this Court, is, whether the Court below erred in charging the jury “that if they believed the contract between the parties to have been as testified to by the' witness, Price, the plaintiff could not recover under the common counts, either for the amount of his expenses back to New York, or for the balance of the year’s services, but that he might recover therefor under the special count in his declaration.” In’settling this question, it will be necessary to review, briefly, the pleadings in the case.
The declaration in the case before us was verbal, and the Justice, undoubtedly, entered in his docket what he deemed to be the substance thereof, although it is not probable that in doing so, he used the precise language of the plaintiff; nor was that necessary. The substance of the declaration, as returned by the Justice, is, firstly, “ for work and labor done, and services rendered for the defendants, and at their request, under a special contract;” secondly, “ for a breach of contract,” and thirdly, “ upon the common counts, and claims damages, &c.”
The first count in this declaration contains the gravamen of a good count in form, and is sufficient in matter of substance, and as a brief statement of the plaintiff’s cause of action, for work and labor. But the second count, when considered separately, as a distinct declaration in the cause, and tested'by the rules of pleading, is beyond all controversy, defective. It is not only deficient in matter of substance, but it is entirely vague and uncertain for want of specification.
The real object of a pleading in any Court, is, to apprize the opposite party of the nature and grounds of the action,
If the defendants in the present case, were not sufficiently apprized of the nature and ground of the cause of action claimed by the plaintiff under the second count, to be willing to join issue thereon and go to trial on the merits, they should have demurred, or demanded a more full and particular statement thereof, before pleading to the merits. The Justice, on such demand being made, would have ordered the plaintiff to be more explicit, to state fully the substantial particulars of his cause of action, and would have turned him with his cause of action out of Court, in case he had refused to comply with such order. Justices of the Peace are, by law, invested with full power and authority on this subject, and it is their duty to exercise it whenever it becomes necessary for the protection of the legal rights of a party. But the defendants neither demurred nor demanded a more explicit statement of the cause of action. On the contary, they voluntarily plead issuabl/y to the whole declaration, and went to trial on the merits.
And on the trial they interposed no objection to the reception of the evidence under the second count. They should, therefore, upon principle, be considered in law as having voluntarily waived all right of objection to the declaration, on the ground of its insufficiency, either for want of substance or specification.
If the defendants had been in fact surprised on the trial, by the evidence adduced under the special count, they would most undoubtedly have objected to its reception, and thus rais
The presumption in law is, that the entire controversy between the parties has been fairly tried by the jury, on its merits; but whether it has been so tried or not, can make no difference with the decision to be made on the question presented by the case here. There are no errors in law appearing in the case, and this Court cannot legally review it, on the facts.
Let it be certified to the Circuit Court for the county of "Wayne, as the opinion of this Court, that the charge of the. said Circuit Court to the jury was correct, and the defendants are not entitled to a new trial.