On reconsideration of this case the court is of the opinion that while the judgment of reversal shall stand, the parties should file new pleadings consisting of declaration and pleas.
This disposition of the case is made necessary by reason of the apparent confusion in the minds of attorneys and court as to the issues at which the parties should have arrived upon the trial of the cause.
As stated in the opinion the case seems to have been tried by the parties upon a theory which the pleadings did not disclose and it is apparent both from the record and oral argument of counsel that counts nine and eleven of the declaration were not treated by either party as counts in covenant.
Upon a careful re-examination of the record and consideration of the oral argument on rehearing, it is considered that justice will be best subserved by a reversal of the judgment with permission to the plaintiff to restate his case by such declaration as he deems efficient, and to the defendant to interpose such pleas as he may which are appropriate in the action declared upon.
So ordered.
BUFORD, CJ., AND WHITFIELD, ELLIS, TERRELL, BROWN AND DAVIS, JJ., concur.