Hughes v. Barney

2 Conn. 704

• Court: Supreme Court of Connecticut
• Decided: November 15, 1818
• Status: Published

Opinion

SwiRT, Ch. J.

This is a general action of account. The plaint iff has recited a cerium writing, acknowledging the receipt of “ the above goods bat there is no allegation, that the above goods were the goods described in the declarations or what goods they were. The allegation, then, respecting the receipt, is a mere nullity, and cannot constitute a distinct count, to prove which the writing would In relevant.

The writing or receipt offered in evidence not only disproved the allegations of the plaintiff in his declaration, but clearly proved an entirely different contract, or engagement, from the one declared on ; and that the defendant was not accountable in the manner claimed by the plaintiff. The evidence, therefore, was not relevant; and was properly rejected by the court.

Gottxd, J.

The declaration charges the defendants, as bailiffs of certain enumerated articles, “ the proper goods of the plaintiffs,” and of which the defendants have rendered no account. The writing, offered in evidence, in support of the declaration, shows, not that the defendants were bailiffs of any of the proper goods of the plaintiffs ; but that they had received the enumerated articles, as part of a cargo, of which they and the plaintiffs were joint owners, and of the whole of w hich the plaintiffs were entitled to one sixth part of the avails. But the evidence, to be relevant, ought to show a liability, on the part of the defendants, to account for the particular goods described, and in the manner stated. in the declaration : whereas the writing goes to prove a liability to account, not only in a manner, entirely different from that alleged, but even for different property j i. e. for one sixth of the entire cargo, instead of the whole of the enumerated articles, which formed a part of it.

There is, however, a singular twofold breach laid, which, it is contended, obviates this objection. It is not, as has been claimed in the argument, a different statement of the contract, in the nature of a second count; but an assignment of the breach, with a sort of double aspect: one part ofit referring to the contract, expressed in the writing j and the other, to that previously alleged in the declaration. But the first breach, or (if it may more properly be so called) the first part of the breach, assigned, is not within the contract, stated, nor the second within that, contained in the writing, recited. Nor can the recital of the writing make the least difference in the case. It is merely % statement of evidence 5 and a plaintiff cannot, by reciting evidence, render it admissible, where it would not, otherwise, be so. It is, in neither case, admissible, unless be has alleged a cause of action, to which it is applicable. The writing in question was, therefore, properly rejected.

The other Judges were of the same opinion.

New trial not to be granted.