The plaintiff upon the trial offered in evidence a note executed by the defendant to plaintiff in which the defendant promised to deliver the plaintiff a quantity of wheat; and claimed damages for the non delivery of the wheat in accordance with said contract. Plea. general *Page 322 issue. There was no declaration in writing, and only a statement that the plaintiff declared in case. The defendant asked the Court to charge the jury that the action could not be sustained, and that plaintiff should have declared in assumpsit. His Honor held that the action was properly brought, to which defendant excepted. Verdict for plaintiff. Rule, etc. Judgment, and appeal by the defendant. The declaration is in case, the action having been commenced under the old system, but it does not appear whether in tort or contract. This is what is called "ambiguous or doubtful pleading," and therefore bad, 1 Chitty Pl, 271.
The defendant took the objection that the action would not lie. From this it would seem that he understood the declaration to be in tort, and the plaintiff did not disclaim it. In answer to the objection his (419) Honor held that the "action would lie."
But still it does not appear, except by inference, and from that obscurely, whether the action is founded in tort or contract.
If in tort it is misconceived. Case, nothing more appearing, is generally understood to be in tort. 1 Chitty Pl. 151.
For the error in this particular there must be a venire de novo, which is to be regretted, as the merits seem to be with the plaintiff.
The bad pleading however is his own fault.
Per curiam.
Venire de novo.