There is no good cause for exceptions to the rulings and instructions of the court, if applied only to the issue raised by the pleadings upon which the case stood during the trial.
After the arguments and charge had been made, the court might properly have refused the amendment. But having, in its discretion, allowed it to be filed, and thus to become a part of the issue, such instructions should have been given as would enable the jury to pass understandingly upon all the questions before them. The court, however, refused to give any further instructions, holding that those already given were applicable and sufficient for the case. Both counts upon which the case had been tried were based upon an alleged contract to procure enlistments, which the defendant admitted he had not fulfilled, if he made such a contract. The count and bill of particulars allowed to be filed sought to recover back money paid without consideration under a mistake of facts. It was not based at all upon the contract set out in the first count, and required no proof of any previous contract to support it. Upon the instructions which had been given, if the jury found that there was no previous contract between the parties, such as was set out in the first count, their verdict must be for the defendant on all the counts alike. The result would be, that the verdict would conclude the rights of the parties upon the claim set out in the last count, when in point of fact it had not been tried, nor any question involved in it ever passed upon by the jury.
The instructions asked for may not have been suitable. It is difficult to see how any instructions could have been given, in the condition in which the case then stood as to the evidence, which would have enabled the jury properly to consider the issue presented by the amended declaration. Most clearly the instructions, under which they were required to consider- it, were entirely inapplicable. So far, therefore, as that count is concerned, it was simply a mistrial.
But this result comes from no fault of the defendant. He *334would have been entitled to hold his verdict upon the origina, counts, but for the mistrial upon the last amended count; for which the plaintiff’s counsel was chiefly responsible. The parties should stand, therefore, as nearly as may be, in the same position as if judgment had been rendered for the defendant upon the original counts, and the plaintiff had brought a new suit upon the cause of action set forth in the amendment.
Accordingly the exceptions are to be sustained, and a new trial granted upon the last amended count, upon condition that the plaintiff pay all costs of suit up to the time of filing that count, and recover no costs previous to that time, in any event. Otherwise, and as to all the other counts, the exceptions are to be overruled, and the verdict for the defendant to stand affirmed.