¶1Taylor sued Young on the common counts, and joined a special count therewith.
¶2Young demurred, and assigned for cause, that the. special count was in tort, and that there was consequently a misjoinder of causes of action. The court overruled the demurrer, and Young pleaded over to the merits.
¶3The cause was then tried without a jury, and the judge made a general finding in favor of Taylor for .two hundred and ninety-four dollars, and judgment was entered upon it. No special findings were made. A point was made upon the alleged misjoinder of causes of action at the trial, and it is now insisted on. The special count which gives rise to the objection is certainly very inartistic and not to be commended. It does not, however, set up a cause of action in tort. On the contrary, we think it embodies the substance of a good count in assumpsit. The gist of it is, that the parties agreed to make a joint purchase of certain land, and that each should pay one-half of the price; that Young made the purchase for one thousand five hundred dollars, but informed Taylor that the price was two thousand dollars, and thereby induced him to pay one thousand dollars instead of seven hundred and fifty dollars as his share. The right to' the amount thus caused to be paid by Taylor over his share, with the interest, is then demanded, and apparently upon the principle that the tort imputed to Young might be waived by Taylor, and a right of action asserted against Young as upon a promise. The theory is not wrong. We cannot say therefore that there was a misjoinder of causes of action.
¶4It is alleged for error that the judgment is not supported by the evidence. The record does not show that all the evidence is reported. The case contains, the general finding made by the judge, and a bill of exceptions, and we cannot say that the evidence returned afforded no basis for the finding. We cannot go behind that and .weigh the evidence.
¶5*27The claim that there was no evidence that Taylor suffered damage, is without force for the reasons just stated. This disposes of the assigned errors.
¶6The judgment must be affirmed, with costs.