Haley v. Hobson

Dickerson, J.

The declaration in the writ is the criterion for determining „ what is recoverable in the suit. The law defines and limits the nature of the claims that are provable under the count or counts in the writ, and if these are broad enough to cover a particular claim, it may be proved and recovered, though it may not have been specified when the writ was drawn. When the writ does not contain a specification of all the items claimed, it is competent for the plaintiff, on leave of court, to supply the omission, and if he does not, the court will order him to do so upon motion of the defendant. The court looks to the *169 declaration to ascertain what causes of action are provable under it, and not to the mind of the plaintiff when he commenced his action ; the intention of the plaintiff at that time to recover upon an item not embraced within the purview of the declaration will not avail him, nor will his want of an intention to maintain a particular claim prevent his recovery for that, if it is recoverable under the declaration. The rule of law was correctly stated by the presiding justice to be, “ that it does not make any odds, so far as the law is concerned, whether the plaintiff had this claim in his mind when he had the, writ made out, or not, if there was an absolute just claim, and his writ is broad enough to cover it.”

There can be no doubt but the second count in the writ is sufficient to include the disputed item for extra pay in working soiled lumber, if it had been originally specified in the writ. As we have seen, the due filing of that item before the cause proceeded to trial is equivalent to its original specification in the writ, and therefore introduces no new cause of action. The position of the counsel for the defendant, that the item in question would not be recoverable if it was not in the mind of the plaintiff when the writ was drawn, is at variance with the uniform practice of courts of common law as well as with reason and authority.

We perceive no sufficient ground for our interposition upon the motion. It was a question of the weight of evidence, and that is to be determined oftentimes by the quality rather than the quantity of evidence. The jury saw and heard the witnesses, and thus had a better opportunity to judge of the quality and general weight of the evidence than the court has; and we are not prepared to say that they so far erred in their conclusions as to authorize us to set aside their verdict.

Exceptions and motion overruled.

Appleton, C. J., Walton, Barrows, Virgin and Libbey, JJ., concurred.