McDevitt

Plaintiff brought this action to recover from the defendants the aggregate sum of $1,101.33, alleged to be balances due her and four other parties who assigned their claims to her prior to the commencement of this action, from the sale of turkeys to the defendants. The complaint, which was filed on the thirteenth day of January, 1923, is unverified, and, in five different causes of action, each in the form of a common count, sets up plaintiff's own and the claims of her several assignors for goods, wares, and merchandise sold to the defendants. The answers of defendants Chas. Corriea Bros. and Charles Corey (erroneously sued as Charles Correy), each denied the allegations of each of the causes of action set up in the complaint. The defendants A.C. and Rose Biggerstaff failed to answer the complaint and judgment against them was taken by default. The case as to the answering defendants was tried by the court, sitting without a jury, and the findings and the judgment were against them and the Biggerstaffs in favor of the plaintiff in the total sum of $1,068.71. The defendant, Chas. Corriea Bros., made a motion for a new trial, which was denied, and the appeal is by said defendant…

The appellant petitions for a rehearing, claiming, as he claimed in his briefs, that the record supports no other course by this court than that of ordering the court below to enter judgment in his favor. We thought our position on the proposition was made sufficiently clear in the former opinion. However, the case presents rather an unique situation and that there may be no misapprehension as to our views regarding the points discussed in the original opinion and renewed by the appellant in his petition, we will take the pains to restate them here. As pointed out in the opinion originally filed herein, the complaint is in the form of a common count as to all the several causes of action therein set forth as for "goods, wares and merchandise" sold and delivered to defendants. The averments of the complaint are, therefore, general in their nature, or not specific as to the contractual relation existing between the defendants in the transactions involving the purchase and sale of "goods," etc. As also likewise shown, the findings are, substantially, in the language of the *Page 259 complaint, and are not, therefore, specific as to the nature of the business relation between the…