Hopper v. Eiland
Supreme Court of Alabama
Ekrob. to tbe Circuit Court of Perry. Tried before tbe Hon. G-eo. D. Shortridge. Assumpsit by M. A. Eiland, to tbe use of Crocker, against M. B. Hopper.
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Ekrob. to tbe Circuit Court of Perry. Tried before tbe Hon. G-eo. D. Shortridge. Assumpsit by M. A. Eiland, to tbe use of Crocker, against M. B. Hopper. Tbe declaration contains a count for three hundred dollars on an account stated, and also three special counts on an instrument in writing, of which the following is a copy: “January 1, 1849. “ Twelve months after date, I promise to pay M. A. Ei-land the sum of three hundred dollars, for the rent of Michael Cammack’s saw mill, in the county of Perry and State of Alabama: Provided, however, that one good team of four oxen or mules can keep the…
1Opinion of the CourtPhelan, J.
— The court charged the jury, that, admit* ting the contract to be as stated by the witness Keeten, still, the plaintiff was entitled to recover on the last count in the de* claration, which was a count on an account stated. This presents the main question in the case, which we will proceed to consider. That the plaintiff could not recover on the special counts on the written instrument, is clear; because, no man is allowed to recover on a declaration whose allegations are not supported by proof, and the proof in the cause shows that the contract between the parties was substantially variant…
2Cases cited4 opinions
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