#### William Graver v. Alexander Nimick et al.

Opinion filed June 19, 1901.

Pleading—when filing of count in trover is not an abandonment of counts in assumpsit. If the plaintiffs file the common counts in assumpsit, upon which issue is joind, and later file a count in trover which recites that plaintiffs “come and amend the declaration herein by adding the following count,” the filing of such additional count is not an abandonment of the former counts, and upon its withdrawal before trial the declaration in assumpsit stands as it was before the count in trover was added.

Writ of Error to the Appellate Court for'the First District;-—heard in that court on appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.

Robert Rae, and Fry & Hyde, for plaintiff in error.

James Edward Purnell, for defendants in error.

Mr. Chief Justice Wilkin

delivered the opinion of the court:

This is a suit in assumpsit, begun in the circuit court of Cook county by the defendants in error, to recover from the plaintiff in error an alleged balance, amounting to $8781.37, due upon an open account and unpaid notes. The trial was by a jury, resulting in a verdict for that amount in favor of the plaintiffs. The Appellate Court for the First District affirmed the judgment below, and the case is brought here upon writ of error.

The chief assignment of error urged here presents a question of pleading. The plaintiffs below first filed common counts in assumpsit, upon which issue was joined, and later filed an additional count in trover, which was *472withdrawn some time before the trial. Upon the hearing of the case the defendant contended, and it is again insisted here, that the court had no jurisdiction of the case, for the reason that upon the filing of the count in trover the plaintiffs thereby abandoned their cause of action in assumpsit, and therefore, when the count in trover was afterwards withdrawn, there remained no cause of action before the court to be tried. This contention is without merit. The additional count itself recites: “Plaintiffs, by leave of court first had and obtained, come and amend the declaration herein, by adding the following count.” This in no sense could be construed as an abandonment of the former counts, but, as it purports upon its face, it was only an addition to the counts already on file. That the counts were inconsistent goes without saying, but, as said by the Appellate Court in its opinion by Mr. Justice Sears, in no event could the filing of the new count “be held to operate as a discontinuance of the cause óf action presented by the old counts of the narr., to which the new count was added. The declaration to which the new count was added still stood, and when the new count was afterwards withdrawn it left the declaration precisely as it was.”

At the conclusion of the evidence the defendant moved the court to take the case from the jury by instructing it to find for the defendant. The motion was predicated upon the assumption that there was no competent evidence introduced by plaintiffs. Pacts fairly tending to support the verdict were testified to by the witness Brunt, who, although he was not the book-keeper, appears to have had personal knowledge of the account and the balance due thereon. Notwithstanding some of the evidence introduced may have been objectionable, yet, aside from this, there is ample evidence in the record tending to support the verdict. The cross-examination of the witness, conducted by defendant’s own counsel, elicited the fact that there remained due from the defendant to *473the plaintiffs, after deducting the payments made on the account, $8781.37.

We concur in the holding of the Appellate Court that plaintiff in error had no defense, either upon technical grounds relating to the procedure or upon the merits. The judgmeht of that court will be affirmed.

Judgment affirmed.