Aikin v. Bloodgood
Supreme Court of Alabama
Error to the Circuit Court of Mobile. Assumpsit by the defendant in error. The declaration contains the common counts, to which the defendant pleaded the general issue.
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Error to the Circuit Court of Mobile. Assumpsit by the defendant in error. The declaration contains the common counts, to which the defendant pleaded the general issue. Upon the trial, it appeared that the plaintiff had built a cotton warehouse, yard, wall, &c. for the defendant, furnished the materials, &c., and that the work, and materials were worth $3200. The defendant then produced a notice, on the plaintiff to produce a written contract, which was produced and read to the jury. By this contract, which was under seal, and dated 3 July, 1844, after describing particularly the work which…
1Opinion of the CourtOrmond, J.
Where parties by a contract under seal, stipulated for the performance of any duty, an action for its breach must be brought upon the instrument itself, and as-sumpsit will not lie, unless the contract has been subsequently varied by the parties, by the introduction of new terms into the contract, or providing a different time for its performance. [McVoy v. Wheeler, 6 Porter, 201.]
We do not understand from the facts, as recited in the bill of exceptions, that there was any change of the terms of the written contract entered into between these parties. It appears that extra work was done, and…
2Cases cited2 opinions
- Linningdale v. LivingstonNew York Supreme Court · 1813
- M'Voy v. WheelerSupreme Court of Alabama · 1837
3Cited by3 opinions
- City St. Improvement Co. v. KrohCalifornia Supreme Court · 1910
- Hutchison v. CullumSupreme Court of Alabama · 1853
- Ex parte Industrial Finance & Thrift Corp.Supreme Court of Alabama · 1951