Wellborn v. Sheppard
Supreme Court of Alabama
Writ of error to the Circuit Court of Barbour. This was an action of Assumpsit, by the defendant in error, against the plaintiff, upon a writipg as follows: “Received, Feb. 19th 1839, three hundred and twenty-five dollars 20-100, belonging to Edmund Sheppard, and foij which I agree to account on a final settlement with him. Wm. Wellborn.
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Writ of error to the Circuit Court of Barbour. This was an action of Assumpsit, by the defendant in error, against the plaintiff, upon a writipg as follows: “Received, Feb. 19th 1839, three hundred and twenty-five dollars 20-100, belonging to Edmund Sheppard, and foij which I agree to account on a final settlement with him. Wm. Wellborn. A judgment final was rendered by default without a declaration, and it is now assigned for error. 1. That there is no declaration. 2. That the judgment was rendered without the intervention of a jury.
1Opinion of the CourtCollier, C. J.
1. It has been repeatedly decided by this court, that a judgment by default, where no declaration has been filed, will not be sustained. This error is decisive of the case, but as it must be remanded, it is proper to express an opinion upon the second point raised.
2. The writing is not an absolute promise to pay the sum expressed on its face; but it is an acknowledgment that so much money was received, and a promise by the defendant to account to the plaintiff for it, on settlement. This implies that the parties had some transactions with each other, which were unsettled, and that when their…
2Cited by2 opinions
- Tunstall v. DonaldSupreme Court of Alabama · 1849
- Cleaver v. PattersonSupreme Court of Alabama · 1848