Wilson v. Smith

The Court: In each of the two counts contained in the complaint the plaintiffs allege that at a certain time and place they performed services for the defendants at their request, in threshing certain wheat and barley. The first count contains the further declaration that for the services so performed, the defendants promised to pay plaintiffs at the rate of six cents for each and every bushel of wheat Vthreshed, and five cents for each and every bushel of barley threshed, and the further sum of five dollars in addition to said rates, amounting in all to the sum of three hundred and seventy-three dollars and sixty-six cents; while in the second count it is averred that for the plaintiffs’ services in the particulars stated, defendants promised to pay what they were reasonably worth, and that the services were reasonably worth three hundred and seventy-three dollars and sixty-six cents.

The bill of exceptions recites that on the coming on of the case for trial “the plaintiffs, by their counsel, opened the case to the jury, and stated that the threshing of wheat and barley mentioned in both counts of the complaint were the same, and that they expected to recover only on one of the counts. That if the jury were of the opinion that there was a contract as stated in the first count of the complaint, they expected to recover on that count, but that if [211]were of the opinion from the evidence that there was no contract as stated in the first count of the complaint, then they expected to recover what such threshing was reasonably worth, on the second count of the complaint. After which, and before the introduction of any testimony, the defendants duly moved the Court to require the plaintiffs to elect on which count they would proceed to trial. The Court denied the motion, and the defendants excepted to the ruling of the Court”—out of which ruling grows all of the alleged errors relied on for a reversal.

We can not say the ruling was erroneous. ■ Under our Code, which provides that the complaint must contain “ a statement of the facts constituting the cause of action, in ordinary and concise language,” the plaintiff may set them out in two separate forms when there is a fair and reasonable doubt of his ability to safely plead them in one mode only.

Judgment and order affirmed.