
    Thomas K. Jones et al. versus Thomas Kennedy.
    Where a verdict is found for the plaintiff on one of several counts and is silent as to the others, and it appears by the judge’s minutes that the evidence applied to that count alone, the verdict wiU be amended, on motion of the plaintiff, by entering a verdict for the defendant on the other counts.
    As a general rule, in the trial of an action, the plaintiff should produce all the evidence on which he means to rely, before the defendant is called upon to make his defence 5 and if the action embraces several independent demands, the plaintiff should in the first instance introduce his evidence as to all of them.
    But where several counts for the same demand are inserted in the declaration with an alternative view, that the plaintiff may recover upon one if he cannot upon another, and the proof of one disproves the other, he may in the first instance produce his evidence in support of one only, and if upon the defendant’s evidence to disprove such count and the plaintiff's evidence to rebut the defendant’s evidence, such count is not supported, but another count is, the plaintiff may recover on the latter count.
    Thus, if the declaration contains one count upon a promissory note claimed to have been given for the sale of goods, and another count for goods sold and delivered, and the plaintiff gives the note in evidence in support of the first count and there stops, and the evidence then introduced by the defendant, together with that introduced by the plaintiff to rebut it, proves the sale and delivery of the goods but that the note was never accepted by the plaintiff in payment, the plaintiff may recover on the count for goods sold and delivered.
    Where the vendee of goods gives his promissory note for the price and pledges the goods as collateral security, and upon non-payment of the note the vendor re-sells the goods at a loss and brings an action upon the note to recover the balance remaining unpaid, the vendee cannot urge in defence, that the loss was caused by the vendoi’s misconduct upon the re-sale 5 but his remedy for such misconduct is a separate action against the vendor.
    Assumpsit. The first count was on a promissory note, dated October 14, 1828, signed 'by the defendant, payable to George P. Thomas or order, for $ 2314-44 in four months and grace, and by Thomas indorsed to the plaintiffs ; the second was indebitatus assumpsit for goods sold and delivered, &c.; and the third was on an insimul computassent for $ 1000. The general issue was pleaded and joined.
    
      The plaintiffs’ counsel, in opening the case, stated that the note was given in payment for a quantity of sugar sold by the plaintiffs to the defendant, which was afterwards deposited by him in their hands as11 collateral security for payment of the note, and that they had received from a re-sale of the sugar the sum of $ 1712-78, which they considered as payment of so much of the note, and therefore claimed only the balance ; that a controversy existed as to their right to recover on the note, but there could be no doubt of their right to recover on the other counts, if they failed on the first ; that they should rest their case, in the first instance, on the note, and if the defendant should produce any evidence requiring reply, they would introduce testimony to establish their right of recovery on the count upon the note or on the other counts.
    The plaintiffs’ counsel then read tire note, the execution of which was not denied, and there rested their case.
    The defendant’s counsel then stated that they should consider the question as relating to the note alone, and should object to the introduction of any evidence by the plaintiffs, after the defendant’s evidence should be in, in order to sustain the second or third count.
    The defence set up was, that the note never was accepted by the plaintiffs ; that the consideration for it had wholly failed, or that there never was any consideration for it, and that the contract for which it was given was rescinded, and the plaintiffs had agreed to give the note up to the defendant to be cancelled.
    One Dunbar, who was called by the defendant, testified that in 1828 he took 30 hogsheads of sugar of the defendant on storage ; that afterwards, in November 1828, the defendant transferred 29 .hogsheads (having sold one to Billings & Marsh) to the plaintiffs, and the witness gave the plaintiffs a writing, dated November 7, 1828, stating that he had received of them 29 hogsheads of sugar on storage from October 14th, to be delivered to them or their order ; that by a memorandum made by the witness, of a conversation between the plaintiffs and the defendant, it appeared that the defendant gave up the 29 hogsheads on condition that he should have his note back when he should have paid for the hogshead sold to Billings & Marsh.
    George P. Thomas testified that he asked Dehon, one of the plaintiffs, to give up the note or take the witness’s name off, which Dehon refused to do ; that the defendant wished the witness to hold the sugar till the note became due ; that the witness made a sale of part of the sugar and went to the defendant, who said the sugar was not his and that the witness must go to the plaintiffs ; that he went accordingly, and they told him he might sell the sugar, but must report to them the names of the purchasers, and if they were satisfied with the names, the witness could make the sales, but he refused so to do ; and that he considered that he was to receive the money and hold it for payment of the note when it became due.
    One Goff testified, that about a fortnight after the first sale, a young man came from the original owners of the sugar and told the defendant he wanted the bill of parcels, as there were some errors in it; that it was borrowed and never returned; and that the note had been given before the bill was taken back.
    It was further testified, that the defendant was present when the sugar was re-sold by auction, and forbade the sale, and demanded either his note or the sugar ; that the plaintiffs said they would not give up the note; that the defendant asked them if his bid would be received, and that the plaintiffs refused to receive it.
    The defendant’s counsel, after their evidence was in, stated that they should argue the case as standing on the first count, and objected to the admission of evidence to maintain any other count ; which objection was overruled.
    • The plaintiffs then introduced the deposition of C. Hap-good. He testified that he carried the bill for the sugar to the defendant who made a small deduction from it; that he took the note, which was for the balance, with Thomas’s name upon it, and carried it to the plaintiffs, who said it would not do, and told him to carry it back to the defendant and to get the bill, to see what deduction had been made ; that he did accordingly, and the defendant said he would get a name that would do, or pay the cash ; that he carried the note back to the plaintiffs ; that the defendant afterwards told the plaintiffs t^ey should have possession of the sugar until he paid $ 1000 or made the note satisfactory ; that the plaintiffs told the defendant he must get an order for the sugar from Dunbar in favor of the plaintiffs ; that the defendant said he would sell the sugar for such notes as they would take for the payment of his bill; that the security was not given for the note but for the bill, the note not being satisfactory; that the $ 1000 was to have been paid on account of the bill; that the witness understood that the note was to be kept by the plaintiffs until the bill should be paid ; that it was not agreed that if the defendant should not make the note satisfactory, he should give up the sugar.
    The plaintiffs introduced a notice given by them to the defendant, that the 29 hogsheads of sugar “ bought by him and for which he had not settled agreeably to the terms of the sale, would be re-sold on the 25th of February for cash on delivery, and that for any loss on the sugar he and his indorser would be held accountable.”
    It was admitted, that on the day when the note became due, the defendant tendered to the plaintiffs the sum for which one hogshead of sugar had been sold to Billings & Marsh.
    
      Wilde J. instructed the jury, that the plaintiffs’ right of action "depended entirely on the first and second counts ; that if upon the evidence they were satisfied of the plaintiffs’ right to recover of the defendant on either count, they must find for the plaintiffs ; that the note was admitted to have been duly signed and indorsed, and that the plaintiffs, on producing it, were entitled to recover, unless good cause could be shown to the contrary, and that the burden was on the defendant to make that out; that if they were satisfied that the note was intended by the parties to be retained by the plaintiffs, their verdict would be on the first count; or if they were satisfied that the note was not accepted by the plaintiffs, and that the sugar was to be returned to them as collateral security for the payment of the bill or price of the sugar, and that the note ought to be returned, their verdict should be on the second count; but that if they were satisfied that the original contract was rescinded, and that the sugar was returned in consrruence and not as collateral security, they must find for the defendant.
    
      March 29th
    _ ..... The jury were further instructed, that if there were any evidence of misconduct or unfairness on the part of the plaintiffs in making the re-sale, supposing the sugar to have been held as collateral security, still the jury could not consider such misconduct or unfairness in mitigation of damages, but that it would constitute a separate and distinct cause of action, for which the defendant must seek the appropriate remedy.
    The jury returned a verdict for the plaintiffs on the first count.
    The defendant moved for a new trial, 1. because the judge permitted the plaintiffs, after they had opened their case and put in all their evidence to support it and waited for the defence to be opened and the defendant’s witnesses to be examined, to put in new evidence to support other counts in their writ, and evidence that had no tendency to rebut the evidence of the defendant’s witnesses, but to prove new, distinct and other contracts and matters different from the contract which, in their opening, they solely relied upon and endeavoured to prove, "which new evidence may have influenced the jury much in finding their verdict.
    
      2. Because the jury were misdirected in this particular, that any misconduct or unfairness of the plaintiffs in the re-sale of the sugar, by means of which the proceeds were less than without such misconduct or unfairness they would have been, constituted no lawful cause for reducing the plaintiffs’ damages in this action.
    3. Because the verdict finds only parcel of the issue, to wit, the promise in the first count, and does not find in relation to the other counts.
    S. D. Parker, for the defendant,
    cited in regard to the insufficiency of the verdict, Holmes v. Wood, 6 Mass. R. 2 ; Porter v. Rummery, 10 Mass. R. 68 ; Gerrish v. Train, 3 Pick. 125 ; Patterson v. United States, 2 Wheat. 225 ; Stearns v. Barrett, 1 Mason, 173. The second and third counts are not for the same cause of action as the first, and a judgment on tills verdict would not be a bar to an action on the causes set forth in those counts. Graves v. Morley, 
      3 Lev. 55 ; Miller v. Trets, 1 Ld. Raym. 324 ; Rex v. Hayes, 2 Ld. Raym. 1521 ; Auncelme v. JLuncelme, Cro. Jac. 31 ; Treswell v. Middleton, ibid. 653 ; Vancleef v. Therasson, 3 Pick. 13.
    The course pursued at the trial was irregular. The first count was relied on by the plaintiffs, but in case there should be strong evidence against them on that count, they reserved liberty to prove the other counts. They ought to have produced their evidence at once, upon all the counts, without waiting to see whether one was not sustained by the evidence given in support of it.
    The instruction to the jury in regard to misconduct on the part of the plaintiffs was incorrect. The plaintiffs’ position was, that they held the sugar as collateral security. They chose to sell it notwithstanding the defendant’s prohibition, and would not permit him to bid and save himself from loss. They show that the defendant did not comply with the terms of the first sale, and sue upon the note for an indemnity ; so far then as their own mismanagement at the re-sale was the cause of a loss, it ought to be considered in mitigation of damages.
    
      C. G. Loring, for the plaintiffs,
    said the report of the judge showed that the first ground of the defendant’s motion was not true. The plaintiffs put in evidence to rebut the defendant’s evidence merely, and not to prove the second and third counts.
    He denied that there was any unfairness on the part of the plaintiffs at the second sale, or if there was, that it could be urged by way of defence in the present action. Scott v. Lifford, 1 Campb. 246 ; ibid. 40, note ; Moggridge v. Jones, 3 Campb. 38, and 14 East, 486 ; Tye v. Gwynne, 2 Campb. 346 ; Templer v. M'Lachlan, 2 New Rep. 136 ; Solomon v. Turner, 1 Stark. Rep. 51 ; Knapp v. Lee, 3 Pick. 452.
    The defect in the verdict may be cured, from the minutes of the judge, by striking out the second and third counts, or by entering upon them a remittitur, or a verdict for tne defendant. Cornwall v. Gould, 4 Pick. 446 ; White v. Snell, 9 Pick. 16 ; Grant on New Trials, 85 ; Usher v. Dansey, 
      4 M. & S. 94; Rex v. Hayes, 2 Str. 842 ; Clarke v. Lamb, 6 Pick. 512, and 8 Pick. 415.
    
      March 30th.
    
   Shaw C. J.

delivered the opinion of the Court. The first point made on the part of the defendant is, that the verdict does not find the whole of the issue. The Court are of opinion, that if all the evidence produced went to establish the demand covered by the count on which the verdict was given, and if the several counts were all intended to embrace substantially one and the same demand, in some one of the various forms in which the evidence would support it, and the verdict was given on that count only, the verdict may be so amended as to make it a verdict for the defendant upon the other counts. It is like the common case of several counts and a general verdict and general damages assessed. There, if requisite, it may be so amended from the judge’s minutes, as to enter the judgment on any particular count. This was settled after considerable deliberation, in the case of Clarke v. Lamb, 8 Pick. 415.

In the case of Patterson v. United States, 2 Wheat. 225, the verdict was erroneous and defective in matter of substance, the jury having found facts not embraced in the issue, and having omitted to find the fact put in issue.

Here there were three counts in the declaration, to which the general issue was pleaded. There being no evidence to establish the third count, the attention of the jury was properly directed to the consideration of the first and second counts ; and as the case was presented to them, their finding the promise alleged in the first, implied a negation of the promise set forth in the second.

The case of the plaintiffs was this. They alleged that the defendant owed them a note, before given in payment for goods sold. The defendant alleged, among other grounds of defence) that the note had not been accepted, and had no validity as a note. Then said the plaintiffs, denying the fact and insisting upon the validity, if the note had not been accepted, the defendant still owed them for the goods. It is to be understood, "that by the law of this state, the delivery and acceptance of a negotiable note, operates as payment for goods sold. The position of the cause before the jury, therefore, was this ; if the note had been accepted and the plaintiffs were entitled to recover upon it, on the first count, the goods had been paid for, and therefore the plaintiffs could not recover upon the second count. And so conversely, if the defendant owed for the goods, it was because the note had not been accepted, and therefore the plaintiffs were not entitled to a verdict on the first count. Under these circumstances we see no objection to entering a verdict for the defendant upon the second and third counts.

The question whether the contract had been rescinded, depended upon different grounds, and was rightly left to the jury as a question of fact, with a proper direction, that if they found the contract rescinded, they would find a verdict for the defendant.

The defendant next objects to the course of proceeding at the trial. The plaintiffs read the promissory note, declared on in the first count, the execution of it having been admitted, and there stopped. The defendant then, besides offering evidence to prove the whole contract rescinded, introduced evidence tending to show that the note had not been accepted ; and then the plaintiffs, to rebut this, produced evidence tending to show that the note had been received as a valid note, and that the property was held merely as collateral security for the payment of the note, and thus to support the first count in their declaration.

Undoubtedly an orderly course of proceeding at trials, is necessary to the attainment of the purposes of justice ; and as a general rule, it is proper that a plaintiff, who has the affirmative, should produce all the evidence which he means to rely upon in the first instance ; and if he has included in one suit, several distinct, substantive and independent demands, he should introduce his evidence as to all his demands, before the defendant is called upon to answer.

But this rule does not apply where several counts are inserted with an alternative view, in order that the plaintiff may recover upon one if he cannot upon another, according to the proof, but all being for one and the same demand. This is the most common reason for introducing several counts, because it is impossible to foresee, in the various events of the trial, what legal case the proof will establish. The most usual case is that of a count on an express promise, with money counts. It may be that the promise will be shown to be void, by force of some positive law, as in the case of gaming, or conditional, and the condition not performed, or defeasible, and defeated by some contingency ; there it may happen that by law, on such proof, the plaintiff will be entitled to recover the demand for which such contract was given in satisfaction, or recover back the consideration, or otherwise ; then the counts for goods sold, for money had and received, with the aid of such proof, will entitle the plaintiff to recover. And this right, of course, will not depend upon the proof originally offered by the plaintiff, but upon the whole evidence in the case, and even upon the evidence which it has been the strenuous effort of the plaintiff to oppose and controvert. The case put by the plaintiffs’ counsel in the argument, of an action on a policy of insurance, furnishes an illustration of this position. The plaintiff in such action proves the policy and the loss, and thus disproves the count for a return of premium. But the defendant shows that the ship was not seaworthy ; the policy never attached ; the premium is shown to have been paid upon a consideration that has failed, and the plaintiff recovers it back Qn the count for money had and received.

To test the present case by these rules:—The plaintiffs claimed their note and nothing but the note from beginning to end; and it was only in the event of their failing to establish "their count on the note, that they relied on any other count. This was what they claimed and proved in their opening, and upon this they were content to rely, but for any proof offered by the defendant. We can therefore perceive no irregularity and no violation of the established rules of pro ■ ceeding in the case before us.

As to the remaining question, relating to the evidence offered by the defendant, of misconduct of the plaintiffs at the second- sale, we are of opinion that this evidence was rightly rejected. So far as the money was received and realized by the plaintiffs from the sale of the goods, it operated as payment of the note. But to permit the defendant in such case to go into evidence of the misconduct of the plaintiffs, for unliquidated damages to be applied in the discharge of the note, would tend to great confusion of rights and remedies.

When property is received as collateral security for a debt, with authority to sell and apply the proceeds, the pledgee is the factor of the debtor, and is bound to use all proper skill and diligence, and to conduct the sale with fairness and with a view to tire best interest of the debtor, and for any misconduct in these respects he would be liable to an action on the case. But a verdict and judgment in this suit would be no bar to such an action. We think if the defendant has any just ground of complaint in this respect, he must be left to his right of action.

Judgment on the verdict as amended. 
      
       See Payson v. Whitcomb, 15 Pick. 212; French v. Hanchett, 12 Pick. 15 Powell v. Sonnett. 1 Bligh’s N. R. 545, Sutton v. Dana, 1 Metc. 383
     