Webster v. Randall
Massachusetts Supreme Judicial Court
Assumpsit brought by Webster and Chase against O. G. Randall and Stillman Fitch, as principal defendants, and Moses Mellen, as their trustee. The writ was dated the 17th of January, 1833. It contained the common money counts, and the damages were laid at $ 10,000. There was no count upon any promissory note.
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Assumpsit brought by Webster and Chase against O. G. Randall and Stillman Fitch, as principal defendants, and Moses Mellen, as their trustee. The writ was dated the 17th of January, 1833. It contained the common money counts, and the damages were laid at $ 10,000. There was no count upon any promissory note. At the trial, before Wilde J., the plaintiffs offered in evidence a promissory note for $ 2119-26, bearing even date with the writ, signed by the defendants and payable to the plaintiffs or order, on demand. The defendants contended, 1. That this note was not the cause of action on which…
1Opinion of the Court
Shaw C. J.
delivered the opinion of the Couit. The first question presented in this case is, whether under a count for money had and received the plaintiff can give in evidence a promissory note, which he had not in mind at the time when he commenced his action ; and the defendants contend that he cannot. This question, we think, depends upon the correct application of the maxim, that in declarations and all other pleadings, the allegata and the probata must correspond, and it is true that a party cannot sue upon one cause of action, and recover upon another. But what are the allegations and…
2Cited by2 opinions
- Feather v. HusteadSupreme Court of Pennsylvania · 1916
- Pyrofax Gas Corp. v. Consumers Gas Co.Supreme Judicial Court of Maine · 1955