23 Wis. 445 | Wis. | 1868
It is quite apparent, upon an examination of the complaint, that the two causes of action therein set forth are in fact one and the same, stated in different forms. In the first cause of action, the plaintiff claims the sum of $1,199.10 as due upon the written contract therein set out, on account of the rental, use and service of the steam tug Tiger, from the 4th day of J une, 1867, up to and including the 19th day of October, of the same year; which tug, with its crew, was employed by the defendant from 4 o’clock a. m., to 8 o’clock p. M., on each and every working day, according to the agreement, upon the United States government work at Sheboygan harbor. In the second count it is alleged, that the plaintiff, at the request of the defendants, with his servants and by his steam tug Tiger, upon and since the 4th of June, 1867, did perform for them (the defendants) labor and service under their contract with the United States government for work upon the harbor at Sheboygan; for which the defendants owed him $1,199.10. We are satisfied that these statements are really founded upon the same cause of action. The pleader, doubtless fearing lest he should fail in sustaining his action upon the written contract, inserted what, under the old system, would be called a qucmtmn meruit count. Such a mode of pleading,
By the Court. — The order of the circuit court, compelling the plaintiff to elect on which of the causes of action in the complaint he will rely, on the trial, is affirmed.