
    Angelo Mistretta vs. Guieseppe Cutulle.
    Suffolk.
    January 7, 1913. —
    January 8, 1913.
    Present: Bugg, C. J., Morton, Hammond, Braley, & Sheldon, JJ.
    
      Practice, Civil, Election between counts.
    Where the declaration in an action of contract contains two counts, one on an instrument in writing purporting to be a promissory note and the other on an account annexed for money lent, if the plaintiff elects to rely on his count for money lent and there is evidence to support it, he is entitled to go to the jury • on that count.
   By the Court.

The plaintiff’s declaration contained two counts, one on a written instrument described as a promissory . note and the other on an account annexed for money lent. At the close of the evidence he elected to rely upon the second count. There was evidence to support his claim on this count and the presiding judge rightly refused to direct a verdict for the defendant. There is nothing in the defendant’s contention, which in substance is that as matter of pleading the plaintiff could recover only on the first count.

J. E. Crowley, for the defendant.

E. M. Shanley, for the plaintiff.

Exceptions overruled.

The case was submitted on briefs.  