Lewis v. Myers
California Supreme Court
Appeal from the Superior Court of the City of San Francisco. The declaration alleged, that on the 16th May, 1851, defendant, Myers, was indebted to plaintiffs, in the sum of $778, for goods, wares, and merchandise, sold and delivered, &e., and that said defendant there, &c., made and delivered his promissory note, payable to and endorsed by defendant Haas, in payment of said indebtedness, to said plaintiffs ; for the said sum of $778, payable six months after date.
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Appeal from the Superior Court of the City of San Francisco. The declaration alleged, that on the 16th May, 1851, defendant, Myers, was indebted to plaintiffs, in the sum of $778, for goods, wares, and merchandise, sold and delivered, &e., and that said defendant there, &c., made and delivered his promissory note, payable to and endorsed by defendant Haas, in payment of said indebtedness, to said plaintiffs ; for the said sum of $778, payable six months after date. That after the delivery of the said note to plaintiffs, it went casually out of his possession, and into the possession of said…
1Opinion of the CourtHeydenfeldt, Justice
Murray, Chief Justice, concurred.
The declaration is upon a note, and there is but the one count.
The court finds that the note was never given, but that the amount of indebtedness from the defendant to plaintiffs, was for merchandise sold.
There is no. plainer principle than that the allegata and prohate must correspond.
The finding is against the averments, and it follows that the latter cannot support the judgment.
Judgment reversed, and cause remanded.
2Cited by1 opinion
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