#### Moore v. Mauro.*

November, 1826.

Misjoinder of Issue — Effect of Verdict.† — The misjoinder of an issue is not fatal after a verdict, and it being stateain the record that issue was joined.

*203Statute of Limitations — Saving—Application of.‡ — The saving in the 4th section of the Act of limitations. (Utev. Code, 488.) applies to the 7th section of the same Act; by which, an action between merchant and merchant is neither barred by one year, nor five years.

Statute — Proceedings in Civil Suit — Sufficiency of Account.^ — Under the 86th section of the Act concerning proceedings in civil suits, &c. (1 Rev. Code. 510.) an account liled in an action of indebitatus assumpsit, which gives notice of the character of a claim is sufficient, although it may be made up of various items of which no notice is given.

Assumpsit was brought in the Superior Court of Haw for the county of Harrison, iby Jonathan Mauro against Richard W. Moore. The declaration contained several counts. The first was indebitatus assumpsit “for divers goods, wares and merchandize,’-' sold and delivered by the plaintiff to the defendant. The second was on a quantum meruit. The third, on a quantum valebant. Another count was on an insimul computassent.

The plaintiff filed two accounts with his declaration, stating the various items on which the claim arose.

The defendant pleaded non assumpsit, and a special plea stating, that the action was founded on an account for goods, wares and merchandize sold and delivered, and that the said supposed causes of action did not accrue within one year next before the commencement of the action; and concludes with a verification.

*The plaintiff joined issue on the first plea; and to the special plea, he replied tnat at the time of the said sale of the goods, wares and merchandize aforesaid, he the plaintiff and the defendant were merchants, and the goods, &c. were sold and delivered by the plaintiff as such merchant, to the defendant as such merchant; and this he is ready to verify.

There is no rejoinder to this replication; but the record states that ‘ ‘issue is thereon joined. ”

The jury rendered a verdict for the plaintiff, and judgment was given accordingly.

At the trial, the defendant filed a bill of exceptions, stating, that the plaintiff introduced two accounts, (which are the accounts filed with the declaration :) that he also introduced a witness to prove that the defendant had bought of him (the plaintiff,) on credit, sundry articles of groceries, and other different articles of merchandize, besides the coffee mentioned in the said accounts; which evidence the plaintiff offered under that part of one of the accounts, which charges the defendant with merchandize per bill, due 10th July, 1819, $480 60. The defendant objected to this evidence, but the objection was over-ruled; and the plaintiff was permitted to prove by the witness, under the charge aforesaid, that the pláintiff sold and delivered to the defendant, on the day in the account mentioned, to the amount of the said sum of $480 60, and delivered therewith a bill of the particular merchandize, with the prices, to the defendant, other than the three bags of coffee charged in the same account as of the 22d of May, 1819. To this opinion, the defendant excepted.

The defendant appealed.

Wickham, for the appellant.

No Counsel, for the appellee.

The points made at the bar are fully stated in the opinion of the Court.

*

For monographic note on Bill of Particulars, see end of case. '

†

Misjoinder of Issue — Effect of Verdict. — In Huffman v. Alderson, 9 W. Va. 634, it is said: “The Virginia cases formerly held, that when there was a special replication containing new matter, there can be no issue thereon without a rejoinder, and that this objection is not obviated by the statement in the. record, that the jury were sworn to try the issue, or rendered a verdict on the issues joined: but it was held otherwise in a more recent case of *Moore v. Mauro, 4 Rand.*488, and this decision was approved in Southside R. Co. v. Daniel. 20 Gratt. 360. In that case, as in this, the record showed no issue made upon the special plea; one had been made upon the general issue, and the jury were sworn to try the issue, but, in their verdict, they state that they find for the plaintiffs on the issues joined. The court held that this was a misjoining of issue, cured by the statute Of jeofails.” And in Henry v. Ohio River R. Co., 40 W. Va. 239, 21 S. E. Rep. 865, it is said: “Some cases hold that even where there is a statement that issue is joined, though there is none that the plea or other pleading was filed, there is still no issue, and the defect is fatal. Wilkinson v. Bennett, 3 Munf. 314; Stevens v. Taliaferro, 1 Wash. 194; Lockridge v. Carlisle. 6 Rand. 20. Others hold, not that there is an issue in such case, but that it is merely misjoinder, and cured by statute'of jeofails after verdict. *Moore v. Mauro,*4 *Rand.*488; Huffman v. Alderson, 9 W. Va. 616; Railroad Co. v. Daniel, 20 Gratt. 344. There is conflict in these cases. See 1 Bart. Law Prac. 482.”

On this point the principal case is also cited in *foot-note*to Stevens v. Taliaferro, 1 Wash. 155; foot-*note*to Walden v. Payne, 2 Wash. 1; Southside R. *203Co. v. Daniel, 20 Gratt. 344, 359, 360, 361, and *foot-note;*Griffie v. McCox, 8 W. Va. 206; Douglass v. Central Land Co., 12 W. Va. 512; Carey v. Mannington, 23 W. Va 19.

‡

Statirte oi Limitations. — See monographic on “Limitación of Actions” appended to Herrington v. Harkins. 1 Rob. 591.

The principal case is cited on this subject in Wortham v. Smith, 15 Gratt. 493. 494. See principal case also cited in Campbell v. Angus. 91 Va. 441, 22 S. *E.*Rep. 167.

«¡Account — Sufficiency. — See principal case cited with approval in Fitch v. Leitch, 11 Leigh 475.

*November 1.

The PRESIDENT

delivered the opinion of the Court. ǁ

This is an action of assumpsit for goods, wares and merchandize, sold and delivered. There are several counts in the declaration, and two accounts filed with it, in pursuance of the 86th section of the Act for limitation of actions, &c. 1 Rev. Code, 510. The defendant pleaded two pleas ; non assumpsit, on which issue was joined; and also that the cause of action, for goods sold and delivered, did not accrue within one year next, &c.; to which the plaintiff replied, that at the time of the sale and delivery of the goods, &c. in the declaration mentioned, the plaintiff and defendant were merchants, and that the said goods, &c. were sold, &c. by the plainti ff as such merchant, and bought, &c. by the defendant as such merchant; on which, though there is no rejoinder in the record, it is stated that issue was joined, and a general verdict. At the trial, a bill of exceptions was filed, setting forth that the plaintiff offered two accounts, those filed with the declaration; and introduced a witness to prove, that the defendant bought of him sundry goods, included in the item dated 1819, April 10th, merchandise per bill, three months due, 10th of July, 1819, $480 60; and that a bill of particulars was delivered to the defendant with the articles; which proof was admitted by the Court to go to the jury.

Several objections were taken by the counsel for the defendant. The first was to the misjoining of the issue upon the plea of the act of limitations; there, being no rejoinder to the replication. But that objection was admitted to be obviated by the act of Jeofails, it being stated in the record that issue was joined on it.

The next objection was to the replication itself, on the supposed ground that the saving in the 4th section of the act of limitations, (1 Rev. Code, 488,) does not apply to the *7th section of the same act, which enacts, that actions founded on any account for goods, and on any article charged in a store account, shall be commenced, &c. within one year next, &c. and not after; but that it applies to the limitation of five years in the 4th section only.

It would be strange indeed, if this construction was to prevail; if an action of indebitatus assumpsit between merchant and merchant, is not to be barred by the saving in the act after five years, but is to be barred before, that is, after one year. This objection was not well considered, or it would not have been made. In Tomlin, *204&c. v. Kelly, 1 Wash. 190, it was decided by this Court, that the act of 1799 applied only to the store accounts of retail dealers.

A further objection to the replication was, that it applies as well to the insirnul computassent charged in the declaration, as to. the counts for goods, &c. sold and delivered; and the case of Webber v. Tivill, 2 Saund. 121, was relied on. But it has no application. In that case, the plea and replication were general, and applied to the insirnul computassent as well as to the indebitatus assumpsit for goods, wares, &c. charged in the declaration. In this case, the plea expressly applies to the counts for goods, wares and merchandize only, and not to the insirnul computassent. As to that count, the issue was joined on the plea of non assumpsit. But, if otherwise, in the case of Webber v. Tivill, there was a demurrer to the replication; in the case before the Court, issue was joined, on which there was a general verdict; after which no objection can be taken, either of form or substance, which might have been taken advantage of by a demurrer, and which shall not have been so taken advantage of. 1 Rev. Code, S12, sec. 103.

The last objection was to the admission of the proof set out in the bill' of exceptions. The 86th section of the act aforesaid enacts, that in every action of inde6itatus assumpsit, the plaintiff shall file with his declaration, an account stating distinctly the several items of his claim against *the defendant; and that on failure thereof, he shall not be entitled to prove before the jury any item which is not so plainly and particularly described in the declaration, as to give the defendant full notice of the character thereof. The object of this section was to give the defendant full notice of any claim which might be. insisted on before the jury, under the general counts in the declaration. The words of the section are, “full notice of the character thereof;” that is, whether the claim was for goods, wares and merchandize, for money laid out, &c. for money received to the use of the plaintiff, &c. &c. The item in the account, which is objected to, certainly gave this notice; and though upon the evidence to the jury, it was made up of many articles, the character of the claim is sufficiently designated: and the proof that the articles included in it were sold and delivered to the defendant by the plaintiff, was properly admitted by ■ the Court to the jury.

The judgment is therefore to be affirmed.

ǁ

 Judge Coalter absent.