
    Thomas P. Rich vs. Samuel D. Jones.
    In an action of assumpsit, a person in the employ of the plaintiff, whose com pensation is fixed at a certain percentage of net profits, is rendered a competent witness for the plaintiff by a release of all interest in the amount which may he recovered in the suit; it not having been made to appear, by examination of the witness on the voir dire or otherwise, that the plaintiff, if he should lose his case, would have a legal right to charge the costs and expenses thereof on the general fund, and thus diminish the compensation of the witness.
    The filing of new counts, after an auditor has made his report, is no proof that the trial at bar was of a different cause of action from that which appeared on the record when the auditor was appointed. No exceptions having been made to the filing of the new counts, it must be understood, in this court, that they were for the same cause of action as the original c' unts.
    An auditor, appointed under Rev. Sts. c. £6, in an action to recover the value of certain leather delivered to the defendant, to be made into shoes, and alleged to have been converted by him to his own use, may find, as a fact, whether any thing, and how much, is due from the defendant to the plaintiff; and his report on this question is prima facie evidence before the jury.
    If a special demand be not necessary to the maintenance of the action, it need not be proved, although directly alleged.
    A declaration contained four special counts, setting forth a contract that the plaintiff agreed to furnish to the defendant, leather to be manufactured into shoes, for which the plaintiff was to pay the defendant a certain compensation. One count alleged, as a breach of the contract, that a portion of leather the defendant had converted to his own use, contrary to the contract, whereby the same was wholly lost to the plaintiff. Another count averred a failure by the defendant to manu facture and return a part of the leather, either manufactured into shoes, or in any other way, and that the same was wholly lost to the plaintiff by reason of such breach of contract. Another count set forth that the defendant so negligently and unskilfully conducted himself in the business, that, by reason thereof, a portion of the leather was wasted and lost. The other count alleged a conversion of the leather by the defendant, by permission of the plaintiff, and an agreement, in consideration thereof, to pay the plaintiff the reasonable value thereof. It was held, that these were all proper counts in assumpsit, and that it was immaterial whether the breach was caused by tortious acts, which would have enabled the plaintiff to maintain an action ex delicto.
    
    No exception can be taken to the refusal of a judge to allow the counsel for the defendant, on opening his case, to comment on the plaintiff’s evidence.
    In an action to recover the value of certain leather delivered to the defendant, by the plaintiff, to be made into shoes by the defendant, the plaintiff alleging a conversion of a portion of the leather, and the «defendant averring that it had all been returned in the shoes manufactured; some of the defendant’s witnesses having described leather which they supposed had been received by the defendant of the plaintiff, the defendant proposed to ask another witness, who was called as an expert, how much leather, such as described by the above witnesses, it would take to make a certain number of pairs of shoes; and it was held that the refusal of the judge to allow this question to be put was right, it not appearing that the witness had the means of forming the opinion desired.
    
      This was an action of assumpsit, tried before Mellen, J., in the court of common pleas. The writ contained the usual general counts and a count upon an account annexed, with a specification of claim, the same as the account annexed, which was as follows : —
    “ Defendant to plaintiff Dr. in 7,123 lbs. sole leather, at 14 cts. per lb. $997.34.”
    Subsequently, by leave of court, four special counts were filed, setting forth a contract between the plaintiff and defendant, in which it was alleged that the plaintiff agreed to furnish to the defendant the requisite leather, &c., to be by him manufactured into shoes of various kinds, and which leather the defendant was to take at the plaintiff’s store, and return to the plaintiff at his store when manufactured, for which the plaintiff was to pay the defendant the expenses of bottoming and fitting the shoes, and the sum of seven cents per pair, in full for all other services in the manufacture and return. These counts alleged various breaches of the contract. One of them alleged that a large portion of sole leather, delivered to the defendant for the above purpose, the defendant had converted to his own use, contrary to the above contract, whereby the same was wholly lost to the plaintiff; alleging also the value of the leather so converted. Another of the counts alleged a failure on the part of the defendant to manufacture and return a large part of the sole leather so delivered by the plaintiff to him, either manufactured into shoes, or in any other way, alleging the value of the leather, and that the same was wholly lost to the plaintiff by reason of such breach of contract.
    Another of the counts alleged that the defendant so negligently and unskilfully conducted himself in such business, that, by reason thereof, a large portion of the sole leather so delivered to him by the plaintiff was wasted and lost. There was also another count, alleging a conversion of the leather by the defendant, by permission of the plaintiff, and an agreement, in consideration thereof, to pay the plaintiff the reasonable value thereof, alleging such value.
    The defendant pleaded the general issue, and filed a specification of defence, alleging a return to the plaintiff, in shoes, of all the leather delivered.
    When the action was commenced, the writ contained only the general counts and that upon the account annexed. After two of the special counts had been filed by leave of court, the case was referred to an auditor, who made a report. Subsequently thereto, by leave of court, the remaining special counts were filed, and one of the prior counts amended.
    The third term after the auditor’s report was returned and filed, the cause came on for trial, when the plaintiff offered the report in evidence, to which the defendant objected; first, because it appeared by the report, that the auditor had erred in admitting the testimony of two of the plaintiff’s witnesses. It appeared that these witnesses were in the employment of the plaintiff at the time of the contract in question, and, by agreement with the plaintiff, were to receive, as compensation for their services, a certain portion of the net profits of the business ; but were under no agreement to pay any losses, any further than such losses went to diminish the amount of such profits. It also appeared that the business was carried on solely in the name of the plaintiff; and that, upon the objection being taken before the auditor, a release had been executed by the witnesses. This objection to the auditor’s report was overruled by the judge.
    Secondly, the report was objected to, because the plaintiff had filed the amendments above mentioned since the hearing before the auditor. This objection was overruled by the judge, it appearing that no motion had been made by the defendant to recommit the report to the auditor for further hearing, and the defendant declining to move for further time to make such motion.
    Thirdly, because the auditor erred in reporting as he did, how much was due from the defendant to the plaintiff on a statement of accounts between the parties, instead of simply finding the amount of leather delivered, and the number of shoes returned.
    The auditor’s report was then read to the jury.
    The plaintiff introduced evidence that, in the exercise of ordinary care and skill, it would require only 1| or lj lbs. per pair of sole leather, to make the men’s shoes or brogans returned by the defendant, there being no dispute about the amount of sole leather required to make the other kinds oi shoes returned by the defendant; and that, at that rate or estimate, it did not require so much sole leather, to make the shoes returned by the defendant, as had been delivered to him by the plaintiff; and that there was, therefore, a large amount unaccounted for. There was no evidence showing the manner in which the defendant conducted the business of manufacturing the shoes. The plaintiff also gave evidence of the contract, as alleged in the declaration; and it also appeared by the same evidence, that the seven cents per pair, named in the agreement, for the defendant’s services, &c., were to be paid, six cents in money, and one cent upon each pair by allowing the same on account of a prior debt from the defendant to the plaintiff. There was evidence that, on such prior debt, the plaintiff had received a dividend. The declaration contained no allegation touching such method of paying the seven cents per pair. The defendant objected that this constituted a variance, but this was overruled by the judge.
    The plaintiff also gave evidence that, prior to the com mencement of this suit, he demanded a return of the remaining leather or shoes, and that the defendant replied, that the whole of the leather delivered to him had been returned in the shoes that the plaintiff had received.
    The defendant’s counsel, in opening his case to the jury, proceeded to comment, by way of argument, upon the testimony already offered by the plaintiff; but the judge declined to permit him to argue such evidence and facts to the jury, and ruled that the proper course was for the defendant’s counsel, in opening, to confine himself to a statement of the grounds of the defence, and of the facts which he expected to prove. There were two counsel engaged in the defence. To this ruling the defendant excepted.
    Some of the defendant’s witnesses described the sole leather which they supposed had been received by the defendant from the plaintiff. The defendant subsequently called one James W. Soule, who testified that he was a cutter of shoes, and had been so for ten years ; and that, in his opinion, it would take from 160 to 170 pounds of sole leather, of fair quality, to make one hundred pairs of men’s kip brogans, of first quality. The defendant then proposed to ask the witness whether he had heard the testimony of two of the defendant’s witnesses, who had testified respecting the plaintiff’s leather, and how much leather, such as described by them, it would take to make 100 pans; whether, in making this estimate, he founded such estimate on such leather; and if not, wherein it differed; which questions were objected to by the plaintiff, and the objection was sustained.
    After the testimony was closed, the plaintiff elected to waive the general money counts, and to rely upon the special counts filed in the case.
    The defendant then requested the judge to instruct as follows, namely: —
    First, that there was a variance between the plaintiff’s allegation in his declaration and his proof, which was material in this, that the declaration alleges that the defendant was tc. receive seven cents per pair for his services, &c., and the proof was that he was to receive six cents in money and one cent upon a previous debt.
    Second, that there was no special demand alleged in the plaintiff’s declaration, and therefore the plaintiff could not recover upon the ground of a demand and refusal, or a conversion evidenced by that.
    Third, that the plaintiff could not recover for the sole leather, or any part of it, in this action ; and if they found that it had been converted by the defendant, or had not, for any cause, been all returned by him in the brogans, then he could not recover in this action.
    Fourth, that if they found a conversion of the sole leather, unless they found that the same had been sold by the defendant, or converted into money, the plaintiff could not waive the tort and sue in assumpsit.
    The judge declined so to instruct the jury, but. did, among , other things not excepted to, instruct the jury that there was no material variance between the plaintiff’s proof and declaration ; that the demand was sufficiently alleged in the plaintiff’s declaration ; and that the plaintiff could recover the value of the leather not returned, in this form of action, if the jury found that the defendant had wasted the leather in manufacturing, or had lost it from want of ordinary care, or had converted it to his own use, whether the defendant had converted the leather into money or not; and that the plaintiff might recover in this form of action, although they should find that the defendant had the leather on hand at the time of the making of such demand.
    The judge instructed the jury to find whether the defendant had the leather not returned and on hand, at the time of the demand, if they found that the whole amount had not been returned by him to the plaintiff. The jury rendered a verdict for the plaintiff; and, on being inquired of, informed the judge that they found that the defendant had not the leather on hand at the time of the demand.
    The defendant alleged exceptions.
    
      N. Richardson, for the defendant,
    cited Baxter v. Buck, 10 Verm. 548; Robbins v. Otis, 1 Pick. 368; Penny v. Porter, 2 East, 2; Whaley v. Pajot, 2 B. & P. 51; White v. Wilson, 2 B. & P. 116; Hockin v. Cooke, 4 Term R. 314; Wallis v. Scott, 1 Strange, 88; Birles v. Trippet, 1 Saunders, 32, and note, 2; Bach v. Owen, 5 Term it. 409.
    
      M. S. Clarke, for the plaintiff,
    cited Dewey v. Cabot, 6 Met. 82; Bradley v. White, 10 Met. 303; Lord v. Baldwin, 6 Pick. 348; Clarkson v. Carter, 3 Cowen, 84; Bar stow v. Gray, 3 Greenl. 409; Loyd v. Archbowle, 2 Taunt. 324; Leveck v. Shaftoe, 1 Esp. 468; Jones v. Stevens, 5 Met. 373; Barnard v. Stevens, 11 Met. 297; Bradley v. Clark, 1 Cush. 293; Fox v. Hazelton, 10 Pick. 275; Lazarus v. Commonwealth Ins. Co. 19 Pick. 81; Hobart v. Hilliard, 11 Pick. 143; Dyer v. Rich, 1 Met. 180, 190; 1 Chitty PI. 362; Bristow v. Waddington, 2 New Rep. 355; Amory v. Brodrick, 5 B. & Aid. 712; Bowdell v. Parsons, 10 East, 359 ; 28th and 30th rules of the court of common pleas; 1 Chitty PI. 121.
   Metcalf, J.

1. The court are of opinion that the testimony of the two witnesses, who had been in the employment of the plaintiff, was rightly received by the auditor. For aught that appears, the release given by them to the plaintiff rendered them .competent. The defendant’s counsel suggests, “ that the plaintiff, if he should lose this case, would have a legal right to charge the costs and expenses thereof on the general fund, and thus decrease the witnesses’ profits.” But we do not know this. If it were so, it should have been made to appear by examination of the witnesses on the voir dire, or otherwise.

2. The filing of new counts, after the auditor had made his report, is no proof that the trial at bar was of a different cause of action from that which appeared on the record when the auditor was appointed. It must be understood, in the present stage of the case, that all the counts were for the same cause of action; no exception having been made to the filing of the last. Amendments are often allowed after all the evidence is introduced; sometimes after verdict. The Rev. Sts. c. 100, § 22, authorize amendments at any time before judgment rendered.

3. The objection, that the auditor had no authority to find the facts which he has reported, is answered by the decision in the case of Locke v. Bennett, 7 Cush. 445.

The auditor’s report was therefore rightly admitted in evidence to the jury.

4. It is objected by the defendant’s counsel, that “if the plaintiff relied on a special demand, he should have alleged it specially; and that it was not enough to allege a general request, without time or place.” Doubtless the law is so, when a special demand is necessary to the maintenance of the action. But, upon examining the various counts in the declaration, we find that neither of them so sets forth the cause of action that it was necessary to allege a special demand. And though such demand is averred in one or two of the counts, yet, as it was a needless averment, it was not necessary to prove it. 1 Saund. Pl. & Ev. (2d ed.) 213. Nor did proof, at the trial, of such needless demand, make any of the counts bad for not averring it.

5. It has been argued for'the defendant, that there was a variance between the contract proved and that which is alleged in some of the counts. It was said that the allegation that the plaintiff was to pay the defendant for his work on the shoes, seven cents per pair, was not sustained by evidence that the plaintiff was to pay six cents in money and one cent by allowing the same on a prior debt, which the defendant owed the plaintiff. We were not much impressed by this argument, and have not deemed it necessary to decide whether it has any force. For if the evidence did not support the counts that alleged the price which the plaintiff was to pay, yet it supported the other counts, which alleged that the defendant undertook, &c., for a certain reward or compensation to be paid him by the plaintiff therefor.” There. are precedents for such counts in the books of entries, and the defendant has not, in any stage of this case, taken exceptions to them.

6. It is objected, that the plaintiff cannot recover in an action of assumpsit, if the defendant converted the leather to his own use, or did not, for any cause, return the whole of it. But, upon inspecting the counts, we are of opinion that they are all proper counts in assumpsit, and that the cause of action therein set forth is a breach of contract. We are also of opinion that it is immaterial whether that breach is or is not alleged or proved to have been caused by tortious acts, which would have enabled the plaintiff to maintain an action ex delicto. Church v. Mumford, 11 Johns. 479; 2 Comyn on Contracts, (1st ed.) 559.

7. The refusal of the judge to permit the counsel, who opened the defence, to comment on the evidence introduced by the plaintiff, is no just cause of exception. It was a matter within the judge’s discretion; and we think he wisely, exercised that discretion in this instance. Two counsel conducted the defendant’s cause at the trial; and no right of his was violated, by confining the argument on the evidence to the counsel who closed the defence. We know of no law which, in a civil action, entitles a party, as of right, to two arguments on the same matter.

8. We see no error in the judge’s refusal to permit the questions to be put to the witness, Soule, which the defendant proposed to put. The auditor had stated in his report, which was before the jury, that the defendant had made and delivered to the plaintiff about fifteen thousand pairs of men’s kip brogans, of first quality, and about four thousand pans of boys and youths’ ldp brogans. The defendant called Soule as an expert; and he testified that, in his opinion, “ it would take from 160 to 170 pounds of sole leather, of fair quality, to make 100 pairs of men’s kip brogans of first quality.” The defendant then wished to show that the plaintiff’s leather was such as would require more than 160 or 170 pounds to make 100 pahs of such brogans ; and, for this purpose, he proposed to put to Soule the questions which the judge would not permit to be put. Now if the witness might have been rightly permitted, in any supposable state of the evidence, to give an opinion on that matter, it seems to us very clear that he could never be so permitted, unless it should first appear that he had the means of forming an opinion. It does not appear, in the present case, that he had such means. The exceptions state, that “ some of the defendant’s witnesses described the sole leather which they supposed had been received by the defendant of the plaintiff; ” and that the defendant proposed to ask Soule “ whether he had heard the testimony of two of the defendant’s witnesses, who had testified respecting the plaintiff’s leather.” This question assumed that the witnesses, to whose testimony his attention was directed, had described the plaintiff’s leather; whereas the fact stated in the exceptions is, that the witnesses described leather which they “ supposed” to be the plaintiff’s. The judge may have been of opinion that the identity of the leather was not sufficiently established to warrant the expert to give an opinion on the questions propounded to him. Besides; it does not appear how much leather, in the defendant’s possession, was examined by the two witnesses. Yet the auditor’s report states that the defendant received from the plaintiff, at different times, nearly fifteen tons of sole leather, and that he made nineteen thousand pairs of brogans, of different kinds. It may be that the witnesses examined so little of the leather (even if it were certainly the plaintiff ’s,) that the expert could not properly form an opinion, which ought to be given to the jury, on the questions which were put to him. Whatever was the ground on which these questions to Soule were rejected, the exceptions do not show that the rejection was wrong. Judgment on the verdict  