Stone v. Lothrop

109 Mass. 63

Opinion

Colt, J.

The original declaration contained only a count for money had and received. The defendant at the first term admitted in his answer that the amount of $155.62 was due the plaintiff ; and although this admission is not evidence against the party making it, yet it is an allegation in the answer by which he is bound. Gen. Sts. c. 129, § 72. The trial was had at a subsequent term, and the plaintiff, after opening his case, was allowed to file an additional count.

As both counts were for the same cause of action, strictly speaking, he could not recover part of his damages upon one count and part upon the other. But, under the defendant’s admission in his answer, no harm was done by permitting the jury, under the original declaration, to find for the plaintiff in the amount of the defendant’s admission, making allowance therefor in any damages they might assess under the last count. The plaintiff was entitled to judgment on the first count at all events, whatever result the jury might come to as to his right to recover on the other.

. The question whether the telegraphic dispatch of September 13 referred to the bonds in question, and was a waiver of the order to sell, was for the jury. The additional count, in the absence of any demurrer, must be taken as sufficient.

Exceptions overruled.