Hill's Administrator v. Nichols
Supreme Court of Alabama
Appeal from the Circuit Court of Etowah. Tried before the Hon. W. L. Whitlock. This action was brought by John B. Nichols, against W. C. Wharton, as the administrator of Oliver P. Hill, deceased.
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Appeal from the Circuit Court of Etowah. Tried before the Hon. W. L. Whitlock. This action was brought by John B. Nichols, against W. C. Wharton, as the administrator of Oliver P. Hill, deceased. The complaint contained two counts, which were in these words: “ The plaintiff claims of William C. Wharton, as the administrator of the goods and chattels, lands and tenements of Oliver P. Hill, deceased, one hundred and sixty-five dollars, due by instrument in writing as follows: ‘ Received of J. B. Nichols one hundred and sixty-five dollars, on account of application for salt, as per list…
1Opinion of the CourtPeters, C. J.
I have looked into this case with a strong inclination to sustain the ruling of the court below on the demurrer ; but.I cannot find reasons sufficient to justify me in so doing. The first count of the complaint is clearly insufficient. Assumpsit lies for the recovery of damages for the breach of any contract, express or implied by law, which is not under seal. 1 Chitty’s Pleadings, 90 et seq. ; Stephens on Pleading, 19 ; Gould’s Pleading, 58, § 19 ; 1 Bacon’s Abr. (Bouv. ed.) 395. The action must be brought in the name of the party really interested. Rev. Code, § 2523. The complaint should…
2Cases cited5 opinions
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