Kelly v. Burke
Supreme Court of Alabama
Appeal from Cullman Circuit Court. Tried before Hon. O. Kyle. Action on common counts. Count two was as follows: “Plaintiff claims -of the defendant itlie sum of one hundred and forty-five and 77-100 dollars, for goods, wares and merchandise delivered to the defendant at his instance and request, together with interest thereon from the 28th day of April, 1900.” Count three differed only in ithat it substituted the words “had and received 'by defendant” for the words…
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Appeal from Cullman Circuit Court. Tried before Hon. O. Kyle. Action on common counts. Count two was as follows: “Plaintiff claims -of the defendant itlie sum of one hundred and forty-five and 77-100 dollars, for goods, wares and merchandise delivered to the defendant at his instance and request, together with interest thereon from the 28th day of April, 1900.” Count three differed only in ithat it substituted the words “had and received 'by defendant” for the words italicized in count two. Count four was the same as count two except that it alleged the date of the delivery. Demurrers to said…
1Opinion of the CourtTyson, J.
— The complaint originally contained one count for goods, wares and merchandise sold by plaintiff to defendant. 'The action was begun against J. A. McMinn, but after it was instituted, the defendant, upon inquisition, was adjudged insane and Burke appointed his guardian. Burke, as guardian, appeared and defended and there was a judgment in his favor, from which the plaintiff prosecutes this appeal.
Plaintiff amended his complaint by adding counts 2, 3, 4, 5 and 6. A demurrer was-sustained to counts 2,-3 and 4. Neither of these counts stated a cause of ac; tion. They aver no promise to…
2Cases cited6 opinions
- State ex rel. Robertson v. McGoughSupreme Court of Alabama · 1897
- Ex parte Mayor of FlorenceSupreme Court of Alabama · 1885
- Bluthenthal v. Town of HeadlandSupreme Court of Alabama · 1901
- Birmingham Trust & Savings Co. v. Louisiana National BankSupreme Court of Alabama · 1892
- Moog v. Hannon's Adm'rSupreme Court of Alabama · 1890
1 more not listed; retrieve them via the Exa API.
3Cited by16 opinions
- Butler v. OlshanSupreme Court of Alabama · 1966
- Denson v. Kirkpatrick Drilling Co.Supreme Court of Alabama · 1932
- State Ex Rel. Russell County v. Fourth National BankSupreme Court of Alabama · 1959
- Smythe v. Dothan F. & M. Co.Supreme Court of Alabama · 1910
- Alabama City, G. & A. Ry. Co. v. SampleySupreme Court of Alabama · 1910
11 more not listed; retrieve them via the Exa API.