Counts in case and assumpsit for different causes of action not dependent upon substantially the same evidence cannot be joined; but a verdict for the plaintiff upon one count will not be disturbed for misjoinder if it appears that the defendant upon the trial was not prejudiced thereby. One who maintains a curbing over a spring on land of another, by virtue of a license to his grantor, is bound to keep it in a reasonably safe condition.
CARPENTER, C. J.
The court have never gone further than the holding that different forms of action may be joined when they are for the same cause. Metcalf v. Gilmore, 59 N.H. 417, 433; Rutherford v. Whitcher, 60 N.H. 110; Brooks v. Howison, 63 N.H. 382, 389; Crawford v. Parsons, 63 N.H. 438. If there may be cases where different causes depend upon the same or substantially the same evidence and so may be conveniently tried in one suit, this is not such a case. Little or no evidence competent on the count in case would be competent on that of assumpsit. The demurrer should have been sustained, and the plaintiff permitted to amend by striking out one of the counts.
But it may be that the error was in fact entirely harmless; it may be that directly after the commencement of the trial the plaintiff practically abandoned the second count, and that the merits of the first count were as fully and fairly tried as they could have been had it been the only count in the writ. If by the joinder of the two counts the defendants were not prejudiced in the trial upon the first count, they were not harmed, and the verdict upon that count should stand. In that event, indeed, the error operates to the advantage of the defendants. They are entitled to judgment on the second count; whereas, had the demurrer been sustained and the second count stricken out, the plaintiff would be at liberty to bring a new action for the use of the spring. If the plaintiff procures an amendment of the case showing that the defendants were not prejudiced by the error, the exception will be overruled.
It is found as a fact that the defendants received the water as Larkin had received it — that is to say, by virtue of a license from the plaintiff. From this finding it follows as a conclusion of law that they were bound to keep the box and cover in a reasonably safe condition.
Case discharged.
PIKE, J., did not sit: the others concurred.