Carpenter, J.
This is an action on a money demand. The complaint consists of two counts; the common counts, and a special count. For the second a substituted count was filed, on which the parties went to trial. The substituted count, so far as material, is as follows :—
“ 1st. On November 25th, 1882, the plaintiff made and delivered to John C. Booth, late of Waterbury, deceased, his promissory note, for $4,000, payable to said Booth or order, three months after date, at the Litchfield National Bank.—2d. It was an accommodation note without consideration, given to said Booth at his request, and upon his promise that he would pay it at maturity.—3d. Said Booth, before its maturity, negotiated said note for value.—4th. He failed to pay it-at maturity, and the plaintiff was thereupon compelled to pay and did pay it, on November 7th, 1883. * * * —9th. The same has never been paid.”
The defendants denied the fourth and ninth paragraphs ; all fhe others were admitted.
In respect to the fourth paragraph, the court found that the plaintiff paid the note as alleged; but further found that the relations of the parties had changed, whereby it became the duty of the plaintiff to pay the note, that he did pay it, and that it is not a valid claim against the defendants. Thereupon judgment was rendered for the defendants, and the plaintiff appealed.
The first reason of appeal is general and requires no further notice. The alleged error which we have considered [521]*521is pointed out in the second and third reasons of appeal, which are as follows :—
“ 2d. The facts upon which judgment for the defendants is found were not in issue in the case.—3d. Having decided all the facts in issue in favor of the plaintiff, the court erred in rendering judgment on them for the defendants.”
What was the precise issue before the Superior Court? Counsel for the plaintiff, in their oral argument, tell us that the first count was abandoned. Counsel for the defendants in their brief say—“ No claim was made under the first count of the complaint.” Aside from the substantial agreement of counsel that the first count is out of the case, the law and the Rules of Practice concur in so regarding it. The first section of the Practice Act provides that “ the first pleading on the part of the plaintiff shall be known as the complaint, and shall contain a statement of the facts constituting the cause of action,” etc. Gen. Statutes, § 872. The ninth section provides that “ all pleadings shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved,” etc. Gen. Statutes, ! 880. The first section of the Rules of Practice under the head of “ Complaint,” page twelve, is as follows :—“ The form of complaint hereinafter provided, and denominated the common counts, may be used for the commencement of an action, when any of these counts is an appropriate general statement of the cause of action ; but the defendant shall not be required to plead, nor shall any default be taken, until the plaintiff has filed a proper bill of particulars, or such further statement by way either of a substituted complaint or of amendment as may be necessary to show his cause of action as fully as is required in other cases; and such statement, where the demand is founded on an express contract, whether executory or executed, shall set forth the terms of the contract. Where a bill of particulars only is filed, all the counts not applicable thereto shall be struck out by amendment.”
Paragraph second of the first count, or what would have been paragraph two if properly numbered as the statute re[522]*522quires, (§ 880,) is the only portion of the first count which can apply to this case. That is a very general statement of a fact which is applicable to every case of this nature—“The plaintiff * * * laid out and expended said sum for the said' Booth.” It is contrary to the spirit of the Practice Act to allow parties to go to trial upon such a general statement, and it will not be presumed that they did so. The common count can be properly used only in connection with a bill of particulars, and then only the count applicable to the case. All others are to be stricken out. Here there was no bill of particulars, the substituted second count containing the “plain and concise statement of the material facts” required by the statute. On that alone the parties went to trial. Hence the common counts were in effect stricken out,
Moreover, there is no fact found here that is applicable to the first count. In saying this we do not refer to conclusions of law. There is a conclusion of law stated as if it was a fact, as we shall presently see; but every material issuable fact found is embraced in the issue on the substituted second count. This must be so, for the statute requires a plain and concise statement of the facts ; and when such a statement exists, as it does in this case, there can be no occasion for resorting to the general counts.
What then was the issue ? Simply this :—did the plaintiff pay the note when due? If so, has he been repaid? The finding is explicit that the plaintiff paid the note. That, in connection with the admitted facts, raised an obligation on the part of Booth to repay it. It is not claimed that Booth, or his executors, have ever paid it. Why then is not the plaintiff entitled to a judgment? The defendants say that he is not, because, they say, that when he paid the note it was his duty to pay it, and he paid it as his own debt. But duty is not an issuable fact, but is a conclusion of law. Hence an allegation of duty, without averring the facts from which the duty arises, is insufficient. For the same reason finding a duty simply, without the facts, is of no avail. Parties have a right to have the facts appear of [523]*523record so that the legal question whether they raise the duty may be reviewed. More than that, they have a right to deny their existence, and to be heard on that question. It necessarily follows that they must be averred in pleading, and an issue, either of law or fact, be regularly found. In this case neither facts nor the resulting duty are alleged. The finding of duty is wholly outside of any issue in the pleadings.
“ No facts can be proved under either a general or special denial, except such as show that the plaintiff’s statements of facts are untrue. Facts which are consistent with such statements, but show, notwithstanding, that he has no cause of action, must be specially alleged.” Rules under the Practice Act, sec. 6, p. 16. It is difficult to conceive of a clearer case for the application of that rule.
The nature of the facts, which are the foundation of the supposed duty, does not appear. Counsel for the defendants do not claim that the evidential facts which appear in the finding raise any such duty. In the principal brief they say:—“The fact, however, is so, that between the date of Booth’s agreement to pay the note and the maturity of the first note of January, 1883, the relations between the plaintiff and Mr. Booth had become changed, probably by some transaction in which Mr. Sooth had made some settlement with the plaintiff, whereby the burden of paying the notes was shifted on the plaintiff,” etc.
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Carpenter, J.
This is an action on a money demand. The complaint consists of two counts; the common counts, and a special count. For the second a substituted count was filed, on which the parties went to trial. The substituted count, so far as material, is as follows :—
“ 1st. On November 25th, 1882, the plaintiff made and delivered to John C. Booth, late of Waterbury, deceased, his promissory note, for $4,000, payable to said Booth or order, three months after date, at the Litchfield National Bank.—2d. It was an accommodation note without consideration, given to said Booth at his request, and upon his promise that he would pay it at maturity.—3d. Said Booth, before its maturity, negotiated said note for value.—4th. He failed to pay it-at maturity, and the plaintiff was thereupon compelled to pay and did pay it, on November 7th, 1883. * * * —9th. The same has never been paid.”
The defendants denied the fourth and ninth paragraphs ; all fhe others were admitted.
In respect to the fourth paragraph, the court found that the plaintiff paid the note as alleged; but further found that the relations of the parties had changed, whereby it became the duty of the plaintiff to pay the note, that he did pay it, and that it is not a valid claim against the defendants. Thereupon judgment was rendered for the defendants, and the plaintiff appealed.
The first reason of appeal is general and requires no further notice. The alleged error which we have considered [521]*521is pointed out in the second and third reasons of appeal, which are as follows :—
“ 2d. The facts upon which judgment for the defendants is found were not in issue in the case.—3d. Having decided all the facts in issue in favor of the plaintiff, the court erred in rendering judgment on them for the defendants.”
What was the precise issue before the Superior Court? Counsel for the plaintiff, in their oral argument, tell us that the first count was abandoned. Counsel for the defendants in their brief say—“ No claim was made under the first count of the complaint.” Aside from the substantial agreement of counsel that the first count is out of the case, the law and the Rules of Practice concur in so regarding it. The first section of the Practice Act provides that “ the first pleading on the part of the plaintiff shall be known as the complaint, and shall contain a statement of the facts constituting the cause of action,” etc. Gen. Statutes, § 872. The ninth section provides that “ all pleadings shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved,” etc. Gen. Statutes, ! 880. The first section of the Rules of Practice under the head of “ Complaint,” page twelve, is as follows :—“ The form of complaint hereinafter provided, and denominated the common counts, may be used for the commencement of an action, when any of these counts is an appropriate general statement of the cause of action ; but the defendant shall not be required to plead, nor shall any default be taken, until the plaintiff has filed a proper bill of particulars, or such further statement by way either of a substituted complaint or of amendment as may be necessary to show his cause of action as fully as is required in other cases; and such statement, where the demand is founded on an express contract, whether executory or executed, shall set forth the terms of the contract. Where a bill of particulars only is filed, all the counts not applicable thereto shall be struck out by amendment.”
Paragraph second of the first count, or what would have been paragraph two if properly numbered as the statute re[522]*522quires, (§ 880,) is the only portion of the first count which can apply to this case. That is a very general statement of a fact which is applicable to every case of this nature—“The plaintiff * * * laid out and expended said sum for the said' Booth.” It is contrary to the spirit of the Practice Act to allow parties to go to trial upon such a general statement, and it will not be presumed that they did so. The common count can be properly used only in connection with a bill of particulars, and then only the count applicable to the case. All others are to be stricken out. Here there was no bill of particulars, the substituted second count containing the “plain and concise statement of the material facts” required by the statute. On that alone the parties went to trial. Hence the common counts were in effect stricken out,
Moreover, there is no fact found here that is applicable to the first count. In saying this we do not refer to conclusions of law. There is a conclusion of law stated as if it was a fact, as we shall presently see; but every material issuable fact found is embraced in the issue on the substituted second count. This must be so, for the statute requires a plain and concise statement of the facts ; and when such a statement exists, as it does in this case, there can be no occasion for resorting to the general counts.
What then was the issue ? Simply this :—did the plaintiff pay the note when due? If so, has he been repaid? The finding is explicit that the plaintiff paid the note. That, in connection with the admitted facts, raised an obligation on the part of Booth to repay it. It is not claimed that Booth, or his executors, have ever paid it. Why then is not the plaintiff entitled to a judgment? The defendants say that he is not, because, they say, that when he paid the note it was his duty to pay it, and he paid it as his own debt. But duty is not an issuable fact, but is a conclusion of law. Hence an allegation of duty, without averring the facts from which the duty arises, is insufficient. For the same reason finding a duty simply, without the facts, is of no avail. Parties have a right to have the facts appear of [523]*523record so that the legal question whether they raise the duty may be reviewed. More than that, they have a right to deny their existence, and to be heard on that question. It necessarily follows that they must be averred in pleading, and an issue, either of law or fact, be regularly found. In this case neither facts nor the resulting duty are alleged. The finding of duty is wholly outside of any issue in the pleadings.
“ No facts can be proved under either a general or special denial, except such as show that the plaintiff’s statements of facts are untrue. Facts which are consistent with such statements, but show, notwithstanding, that he has no cause of action, must be specially alleged.” Rules under the Practice Act, sec. 6, p. 16. It is difficult to conceive of a clearer case for the application of that rule.
The nature of the facts, which are the foundation of the supposed duty, does not appear. Counsel for the defendants do not claim that the evidential facts which appear in the finding raise any such duty. In the principal brief they say:—“The fact, however, is so, that between the date of Booth’s agreement to pay the note and the maturity of the first note of January, 1883, the relations between the plaintiff and Mr. Booth had become changed, probably by some transaction in which Mr. Sooth had made some settlement with the plaintiff, whereby the burden of paying the notes was shifted on the plaintiff,” etc. In the supplemental brief they say:—“Would it not have been admissible to show that Booth paid Atwood $4,000 before the maturity of the note ? In substance that is what was done—what must have been done, in order for Atwood to be obliged to pay the note as his own debt.” Thus they admit that the supposed duty must have arisen from some such fact as they have suggested. If so, the fact should have been alleged under the rule quoted above.
The evidential facts referred to have more or less tendency to prove the existence of some such fact; but they do not of themselves directly raise the duty found by the court. That the plaintiff repaid to Booth the money paid by him [524]*524to take up the first note, that he paid the interest on the renewal of the second note, that the plaintiff requested one of said renewals, that he never mentioned to Booth the fact that he had paid the second note, that said note is lost, and the like,—would have had more or less weight as tending to prove such ultimate fact, but they do not of themselves raise the duty found by the court. We conclude therefore that the court, having found all the facts in issue in favor of the plaintiff, erred in rendering judgment for the defendants.
The defendants’ counsel however suggest that the record does not show that the question was made and decided in the court below. The statute, § 1135, is as follows:—“ But no errors shall be considered on an appeal unless they are specifically stated in the reasons of appeal, and unless it also appears on the record that the question was distinctly raised at the trial, and was decided by the court adversely to the appellant’s claim.”
We are not disposed to disregard that statute or impair its usefulness. There are some questions of evidence, and some other minor or incidental questions, which may be involved in a case, but which are not necessarily so, to which the statute .more particularly applies. Such questions will not be considered unless it affirmatively appears that they were in fact made and decided in the court below. But it was not the design of the statute to deprive the court of the power to review the main question in the case, and to correct any errors therein, when it necessarily appears that it was made and decided. In such cases an express declaration to that effect is unnecessary.
In this case the pleadings concede that if the facts are as stated in the complaint the plaintiff is entitled to a judgment. Otherwise a demurrer would have been the proper answer. The court below found those facts as alleged, but upon a conclusion of law from facts not stated in the pleadings, and which do not appear in the finding, rendered judgment for the defendants. That action of the court the plaintiff could not have anticipated. It was an error in the [525]*525proceedings subsequent to the trial; an error in the court in rendering judgment. The plaintiff was not bound to object in anticipation of such a result.
Besides, his general claim, that upon the facts he was entitled to a judgment, necessarily includes the question now under consideration. So we think it sufficiently appears that the question was made and decided in the court below. Any other construction of the statute may deprive a party of a remedy to which he is clearly entitled, and result in manifest injustice.
It is further suggested that manifest justice has been done, so that the error is immaterial; and that, under the statute and the practice, the court will not reverse the judgment.
It is quite possible that the error was in the process of arriving at the result rather than in the result itself. But we cannot know that it is so. The law will not say that it was impossible for the plaintiff to have explained the unknown facts from which the conclusion was drawn, so as to have destroyed the conclusion. He has had no opportunity to do so. He has been practically denied his day in court. Hence injustice may have been done.
For these reasons a majority of the court are of the opinion that there is error in the judgment, and that it must be reversed and a new trial ordered.
In this opinion the other judges concurred, except Andrews, C. J., who dissented.