Clements v. Eslava
Supreme Court of Alabama
On a writ of error to a judgment of the Circuit Court of Mobile county. Clements, the administrator of Clements, was complained of, at the suit of Eslava, in the action of assumpsit.
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On a writ of error to a judgment of the Circuit Court of Mobile county. Clements, the administrator of Clements, was complained of, at the suit of Eslava, in the action of assumpsit. The declaration contained a common general count, and set out — that, whereas the defendant’s testator, in his life-time, on the twenty-seventh day of October, A. D. eighteen hundred and thirty-four, at, &c., being indebted to plaintiff in the sum of two hundred and ninety-two dollars, as well for divers goods, wares and merchandize, and mules, before that time sold and delivered, to the testator, at his request;…
1Opinion of the Court
HOPKINS,- C. J.
— -There was a general count in the declaration' in this case/ for money, as the price' of two mules. Upon the trial, the proof showed that the price was payable in lumber, to be delivered in Mobile. There was no' proof of the delivery, or of an offer to deliver the lumber. It was proved that a reasonable time for the delivery had elapsed before the commencement of the action. Upon this evidence, the Court below refused to instruct, the jury, that there was a variance between the contract proved and the one set out in the declaration, and that the plaintiff in error was not…
2Cases cited1 opinion
- Halley v. M'CargoCourt of Appeals of Kentucky · 1816
3Cited by1 opinion
- Winter v. Mobile Savings BankSupreme Court of Alabama · 1875