
    Hughes and Grannis against Barney and Smith.
    
      New-Haven,
    
    November, 1818.
    Where the plaintiff', in a general action of account, declared, that the defendant received of the plaintiff, on board a sloop bound to a certain port, certain enumerated articles, the proper goods of the plaintiff, to transport, sell and dispose of; it was held, that a writing- given by the defendant to the plaintiff, acknowledging the receipt of goods, which was to entitle the plaintiff to one sixth part of the profits of the cargo, at the return of the voyage, was not admissible to prove the declaration, as it went to shew a liability different from that imtrender the evidence less irrelevant, that had Smüff forth the his^declaration, and assigned a breach of the contract there», expressed.
    THIS was an action of account, wherein the plaintiffs declared, “ that the defendants, at Georgetown in the state of South-Carolina, on the 13th of April 1812, being masters of the sloop Three Sisters, then bound on a voyage to Charleston, and elsewhere, thence back to Georgetown, received of the plaintiffs on board said sloop, of the proper goods of the plaintiffs, [specifying the articles] to transport to Charleston, and elsewhere, and to sell and dispose of the same to the best advantage of them the plaintiffs, and returns make, and their reasonable account render to thepiaintiffs, when thereto required.” The declaration then stated, “ that the defendants, thereupon, at said Georgetown, on said 13th of April, 1812, made and executed their certain writing or receipt, in the words and figures following, vito. Received on board the sloop Three Sisters, the above goods, which is to entitle Hughes and Grannis to their part of loss and gain in the cargo that is on board, that is, the third of the one half to be paid to Hughes and Grannis, at the return of the voyage, Georgetown, April 13th, 1812. Elihu Smith,
    
    
      Hanover Barney.”
    
    The plaintiffs further averred, “ that said voyage has long since been returned, and the defendants have long since disposed of said cargo and goods; yet the defendants have never paid to the plaintiffs the third of the one half of the avails of said cargo, although the defendants have made great gain, viz,, the sum of 3000 dollars, by the sale and disposition of said cargo ; nor have the defendants, though often requested thereto, ever made any return to the plaintiffs of said articles of goods, nor any part thereof, nor rendered to the plaintiffs any account, but have wholly neglected and refused so to do.”
    the trial at JTew-Haven, August term, 1818, before Swift, Ch. J., and Brainard and Chapman Js., the plaintiffs offered the writing recited in the declaration, as proof to support the declaration. The defendants adhiitted the exe-cu^0n ^,e writing, but objected to its being read to the jury as evidence in the cause, on the ground that it was i****elevant. The court sustained the objection, and excluded the writing. The plaintiffs excepted to this decision of the court, and, atice a verdict against them, moved for iin /.- tri.il, on that ground. Tire motion was reserved in the usual manner.
    
      Staples and ICimberhj, in support of the motion,
    contended, that the wrhing offered in evidence, by the plaintiff", was admissible, ]. Because it pi'ssvi s 1 hut Use articles v,ere received, by the di fe nil ants, as charqui in tin’ declaration.
    
      il, Because il shews, that-'.they were received, by the tie-fendants, to he accounted fot,
    
    3. Because it conduces to prove, that they were to be accounted for, in ¡he manner stated,
    
    
      Bristol, contra,
    after remarking, that the declaration calls upon the defendants to account for goods, the property of the plaintiffs, contended, that the writing in question does not conduce to prove such declaration, for these reasons. 1. That it only proves, that the plaintiffs and defendants were jointly intcresled in certain goods on board the Three Sisters,
    
    2. That when the, plaintiffs claim, that the defendants have received property of them, to sell and account for, they cannot recover, under such a declaration, by shewing that they, with the dcfeiuiants, were j doily interested in the property.
    S. That the. Hitting forth of the writing in the declaration, does not make it proper evidence. The plaintiffs cannot claim, that, they have two counts, one for goods owned by .themselves, and one for goods owned jointly by them and the defendants. That part - of the declaration, which sets forth the writing, «loes not state any case, or distinct canse of action. It merely seis forth certain evidence, which the plaintiffs say they have to support the allegations in the declaration, and which «loes not conduce to prove those allegations. It is, therefore, to be regarded as surplusage.
    
      N. Smith, on the same side,
    was stopped by the Court.
   SwiRT, Ch. J.

This is a general action of account. The plaint iff has recited a cerium writing, acknowledging the receipt of “ the above goods bat there is no allegation, that the above goods were the goods described in the declarations or what goods they were. The allegation, then, respecting the receipt, is a mere nullity, and cannot constitute a distinct count, to prove which the writing would In relevant.

The writing or receipt offered in evidence not only disproved the allegations of the plaintiff in his declaration, but clearly proved an entirely different contract, or engagement, from the one declared on ; and that the defendant was not accountable in the manner claimed by the plaintiff. The evidence, therefore, was not relevant; and was properly rejected by the court.

Gottxd, J.

The declaration charges the defendants, as bailiffs of certain enumerated articles, “ the proper goods of the plaintiffs,” and of which the defendants have rendered no account. The writing, offered in evidence, in support of the declaration, shows, not that the defendants were bailiffs of any of the proper goods of the plaintiffs ; but that they had received the enumerated articles, as part of a cargo, of which they and the plaintiffs were joint owners, and of the whole of w hich the plaintiffs were entitled to one sixth part of the avails. But the evidence, to be relevant, ought to show a liability, on the part of the defendants, to account for the particular goods described, and in the manner stated. in the declaration : whereas the writing goes to prove a liability to account, not only in a manner, entirely different from that alleged, but even for different property j i. e. for one sixth of the entire cargo, instead of the whole of the enumerated articles, which formed a part of it.

There is, however, a singular twofold breach laid, which, it is contended, obviates this objection. It is not, as has been claimed in the argument, a different statement of the contract, in the nature of a second count; but an assignment of the breach, with a sort of double aspect: one part ofit referring to the contract, expressed in the writing j and the other, to that previously alleged in the declaration. But the first breach, or (if it may more properly be so called) the first part of the breach, assigned, is not within the contract, stated, nor the second within that, contained in the writing, recited. Nor can the recital of the writing make the least difference in the case. It is merely % statement of evidence 5 and a plaintiff cannot, by reciting evidence, render it admissible, where it would not, otherwise, be so. It is, in neither case, admissible, unless be has alleged a cause of action, to which it is applicable. The writing in question was, therefore, properly rejected.

The other Judges were of the same opinion.

New trial not to be granted.  