Franklin Paint Co. v. Flaherty

The plaintiff sues to recover on account of an alleged sale of thirty gallons of roofing paint. The writ contains two counts in assumpsit, one an account annexed and the other a special count for nonacceptance. The presiding Justice heard and decided the “cause without the aid of the jury,” the parties agreeing thereto. R. S. 1930, Chap. 91, Sec. 26. His decision was for the defendant. The case comes up on the plaintiff’s bill of exceptions, corrected under Chap. 86, P. L. 1941.

Clearly the action is not maintainable on the first count, for “To maintain an action for the price, actual…