The opinion of the court was'delivered by
Collamer, J.Where there is a general verdict, and one count is insufficient, the judgment, on motion, must be arrested. This has been too often decided in this state to need the repetition of reasons therefor. There was a general verdict, in this case, and the second count states, in substance, that the defendant promised, if the plaintiff would sell and deliver him a certain clock, to pay therefor, but entirely fails to allege that he ever sold or delivered it. This is clearly insufficient. Was this cured by verdict ? \
The law, on this subject, is quite clear; but, in its application, the decisions can hardly be reconciled. The law is, that after verdict, every thing will be intended, or be presumed to have been proved, which is implied or must have appeared in proving what is actually alleged. But “if the plaintiff totally omit to state his cause of action it need not be proved at the trial, and therefore there is no room for a presumption to maintain the verdict.” “ If in an action on a bill, the plaintiff omit to aver presentment ’ to and refusal by the drawee, or that the defendant had notice of non-payment, it is bad after verdict.” 1 Chit. Pl. 722.
In this case there was no averment which implied that a sale was ever made. It was a total omission to state the plaintiff’s cause of action, and that cannot be cured by verdict.
Judgment in arrest affirmed.