
    MAYO against GRAY.
    ERROR PROM ESSEX COMMON PLEAS.
    Parol evidence of a witness’ interest, admitted on his cross-examination, although written evidence of it exist.
    The action below was brought by Gray against Mayo, to recover a balance of freight to and from Richmond, in Virginia. The declaration contained several counts, on a general indebitatus assumpsit for work and labor, care and diligence, done in and about the business of the defendant, for freight and [614] transportation of the goods of the defendant. Ac. One count was for freight of sundry articles, from New York to Richmond, and other articles from Richmond to Elizabethtown, in New Jersey, particularly specifying the articles. On the trial below, the plaintiff, Gray, proved by a respectable witness, the brother of Mayo, who was called as a witness to the agreement between Gray and Mayo, relative to the freight, that Gray agreed to send the schooner Jefferson, which then lay at Elizabethtown, to New York, to take a freight of slate for Mayo, from New York to Richmond, at the customary price; and that Mayo was to find a return cargo of coal at ten and a half cents per bushel, and that Gray was to take five hundred bushels of coal at the market price in New York, in part payment of [*] freight. The master of the schooner was then called, who proved the performance of the voyage, and that Gray took the stipulated quantity of coal in part payment of the freight. The defendant below, Mayo, then offered to prove by the same witness, on his cross-examination, that Gray was not the sole owner of the schooner; but that he had partners concerned with him in the schooner, and that the witness was one of the partners. The witness said that he had obtained a bill of sale for part, since the voyage, and that he was one for whom the schooner was built. At the instance of the plaintiff’s counsel, the court overruled this testimony, on the ground that the bill of sale was the best evidence of the ownership of the schooner, and therefore refused parol proof. The defendant’s counsel asked the witness if he did not sail as master and part owner of the schooner at the time ? This was also overruled by the court, on the same ground. This witness then testified that he considered himself entitled to, part of the freight of a box of shorts, and four shoats, which had been transported in the schooner for the defendant; but that his right to such part arose from his supposed right in the said schooner. This testimony was also overruled by the court, at the instance of the plaintiff’s counsel, on the ground that the bill of sale ought to be produced. The counsel for the defendant moved the court to overrule all the testimony given on the part of the plaintiff, respecting the freight, on the ground,
    1st. That there was a special agreement entered into between the parties respecting the slate and coal, which ought to have been specially declared on.
    2d. That there was another joint owner or owners, of the schooner Jefferson, that were entitled to their proportions of the freight, who ought to have been joined in the action. This the court refused, but declared the evidence proper to be left to the consideration [615] of the jury. The defendant’s counsel offered in evidence an examined copy of an enrollment of the [*] schooner Jefferson, offering to prove the same, in order to show that there were other owners besides the plaintiff. This evidence was objected to, because it was not certified under the seal of the collector, and the court sustained the opinion. The defendant’s counsel called upon the court to charge the jury, that if they believed the first witness, that there was a special agreement on which the plaintiff ought to have declared, and that as he had not done it, he was not entitled to recover in this action. But the court charged the jury that in its opinion the agreement was sufficiently stated in the declaration. On those several matters, bills of exception were taken. The jury found a verdict for the plaintiff below.
    The following points were taken by counsel for the plaintiff’ in error.
    1st. That the court below overruled proper evidence, in not suffering the defendant below to prove other persons part owners of the schooner Jefferson with the plaintiff below.
    2d. That the agreement was special, and ought to have been specially declared on. 2 Mod. 279; Bui. 139; Ep. 138, 139; Gilbert L. E. 190 ; Swift’s L. E. 159.
    
    3d. That they ought to have been permitted to prove, by parol evidence, that Bonnel, the master, was interested in the freight, and of course in the suit; and that his testimony ought to have been overruled on the ground of interest.
   Kirkpatrick, C. J.

This is a writ of error from the Essex pleas. With the record, there come up several bills of exception taken to the opinion of the court upon the trial. Upon inspecting these bills I am inclined to think that the court below mistook the law on several of the points raised before them; but I shall go upon one only.

The action was brought for the freight of a cargo [*] from New York to Richmond, in "Virginia. The plaintiff, to prove the service done, called as a witness one Noah Bonnel, who was sworn in chief, and delivered his testimony. The defendant then, by way of cross examination, put some questions to him touching his interest in the vessel, and in the freight in question. To this it was objected by the plaintiff, because the witness having said he had a bill of sale for part of the vessel, his interest must be proved, if proved at all, by his bill of sale, and not by his parol testimony; and for this reason the court sustained the objection and overruled the defendant’s questions touching the interest of the witness.

[616] Now, I think, it is altogether within the rule of law to interrogate a witness as to his interest, after he is sworn in chief; and if he turns out to be interested, to overrule his testimony; and as to the doctrine set up here, that the witness must produce the written documents upon which his interest rests, as for instance, his bills of sales, his title deeds, or other writings, it is entirely without foundation. Therefore, I think, that the judgment must be reversed.

Rossell, J.

Agreed with the Chief Justice in this opinion.

Pennington, J.

On the first point, I shall give no opinion as to the distinction taken below, between written and parol evidence, until I can perceive the relevancy of the evidence itself. This was a contract made between Gray and Mayo, and not between Mayo and the owners of the schooner Jefferson. Suppose Gray had not sent the schooner on the voyage, would Mayo have been under the necessity of looking up the partners of Gray in the schooner, if he had any, in order to have made them defendants with Gray in an action on this breach of contract ? I apprehend that he could not have sustained a joint action against them. It appears- to me immaterial whether Gray had partners in the schooner, or not; [*] he had executed his part of the contract, and was entitled to a performance on the part of the defendants.

On the second point, the counsel for the defendant below say, that this is a special contract, and ought to have been specially declared on, instead of which, the plaintiff below has declared generally on an indebitabus assumpsit. It is laid down in the books generally, that in an action of assumpsit on a special agreement, the agreement must be specially set out in the declaration. But the boundary between agreements which require a special declaration, and those that do not, is not very exactly defined. The reason given for this rule by Lord Mansfield is, that where there is a special contract, the defendant ought to have notice by the declaration, that he is sued on the contract. The counsel for the defendant below adds another, that a second action may not be brought for the same cause.

If these are all, they are satisfied by the declaration in this case, which sets out the cause of action to arise for freight to and from Richmond, and the articles, precisely as proved. The subject presents itself to my mind, with this additional aspect: that in cases where the action 'is grounded simply on a demand for money [617] had and received by the defendant, to the plaintiff's use, or for merchandise sold and delivered, work and labor, and the like, a general indebitatus assumpsit is sufficient. But where the cause of action grows out of a breach of a special engagement, and calls for damages for a specific breach of this special agreement, then a special action setting out the agreement, and alleging a breach, is necessary, as well for-the purpose of apprising the defendant of the cause of action relied on, as to bring the controversy to a precise- point of fact for the trial of the jury. The only circumstance that has the least appearance of requiring a special declaration in this case is, that for the services done by the plaintiff, he agreed to take a certain [*] quantity of coal in part payment. The proof was, that this had been done, it had been executed, and formed no part of the controversy. The demand of the plaintiff was for the residue. If the defendant had' refused to let the plaintiff have the coal, and he had brought the action to recover damages for a breach of this part of the agreement, then it would have been necessaiy to set out the agreement, and allege a breach. But I cannot perceive any necessity for its being done in this case. I am in favor of special pleadings when the case requires it; but think this declaration sufficient.

On the third point. It is contended that the testimony of Bonnel, the master, ought to have been admitted on another ground; that is, to prove his interest in the cause, and thereby to shut out his testimony altogether. On the first view of this objection, it appeared to me, an afterthought, that as the question was not raised below, it ought not to be here; for it does not satisfactorily appear, that Bonnel was interrogated on this point, with any other view than to show that all proper parties had not been joined in the action. But, on reflection, I am inclined to think, that as the point of interest might have been raised, had not the court overruled Bonnel’s testimony, the plaintiff in error is not precluded from raising the question here; and if so, there cannot be a doubt but that the court erred. There was no necessity for the production of the bill of sale to let in the evidence of the interest of the witness. On this last point, therefore, I concur in reversing the judgment.

I. II. Williamson, for plaintiff.

Chetwood, for defendant.

Judgment reversed, with leave to issue a venire de novo.

Qualified in Den, Howell v. Ashmore, 2 Zab. 261.

See Sheridan v. Medara, 2 Stock. 469. 
      
      
        Doug. 24.
      
     