Smith v. Boston, Concord & Montreal Railroad
Supreme Court of New Hampshire
Assumpsit. The first count in the declaration was as follows: 1st. In a plea of the case, for that whereas, heretofore, on the first day of July, A. D. 1851, at Concord aforesaid, the said plaintiff agreed with the said defendant, for and in consideration of the sum of five dollars by the said plaintiff received of the said defendant, and of the further consideration of the agreement hereinafter set forth by the said defendant to he performed, to furnish for, construct and…
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Assumpsit. The first count in the declaration was as follows: 1st. In a plea of the case, for that whereas, heretofore, on the first day of July, A. D. 1851, at Concord aforesaid, the said plaintiff agreed with the said defendant, for and in consideration of the sum of five dollars by the said plaintiff received of the said defendant, and of the further consideration of the agreement hereinafter set forth by the said defendant to he performed, to furnish for, construct and complete, in a thorough, substantial and workmanlike manner, to the satisfaction and acceptance of the agent and…
1Opinion of the CourtBell, J.
This case raises several questions of some difficulty, both as to the pleading and the construction of the contract declared on.
Of these the first is, whether breaches of several distinct and separate provisions of the contract can be properly assigned in the same count.
There can be no doubt, says Lawes, (Pleading in Assumpsit 278,) but that in assumpsit the plaintiff is not confined to assign one single breach, as he is in declaring in debt for a penalty; but may, in the former action as well as in covenant, assign as many breaches as ..he thinks proper; at all events, where he does not…
2Cases cited14 opinions
- United States v. RobesonSupreme Court of the United States · 1835
- Fleming v. GilbertNew York Supreme Court · 1808
- Williams v. Bank of the United StatesSupreme Court of the United States · 1829
- Baldwin v. MunnNew York Supreme Court · 1829
- Smith v. GugertyNew York Supreme Court · 1848
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3Cited by4 opinions
- Belleau v. HopewellSupreme Court of New Hampshire · 1980
- Pine Gravel, Inc. v. CianchetteSupreme Court of New Hampshire · 1986
- D. M. Holden, Inc. v. Contractor's Crane Service, Inc.Supreme Court of New Hampshire · 1981
- Erin Food Services, Inc. v. Derry Motel, Inc.Supreme Court of New Hampshire · 1988