Dukes v. Leowie
Supreme Court of Alabama
Error from the County Court of Perry. The plaintiff declared in assumpsit for $225. The declaration contains all the common counts. Plea, general issue. Verdict and judgment for defendant. A bill of exceptions, sealed at the trial, shows these facts: The plaintiff proved by one witness that the defendant had stated to the witness he had purchased of the plaintiff a counter and shelves for a store house, and was to give the plaintiff one hundred and sixty dollars for them.
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Error from the County Court of Perry. The plaintiff declared in assumpsit for $225. The declaration contains all the common counts. Plea, general issue. Verdict and judgment for defendant. A bill of exceptions, sealed at the trial, shows these facts: The plaintiff proved by one witness that the defendant had stated to the witness he had purchased of the plaintiff a counter and shelves for a store house, and was to give the plaintiff one hundred and sixty dollars for them. Here the plaintiff closed. The defendant then proved a conversation between the plaintiff and himself, in which plaintiff…
1Opinion of the CourtChilton, J.
The court below, in its charge to the jury, clearly misconceived the law. There is no principle of pleading better settled, than that indebitatus assumpsit will lie to recover upon a contract not under seal, if it has been executed. It is usual to count upon the special contract, and if it be conditional, to aver a performance of the condition ; but the common count is altogether sufficient. See 1 Chit. Pl. 339; Fellow v. Dickinson, 10 Mass. R. 287; 11 Wheat. R. 237; 7 Cranch, 299.
But although the charge, as an abstract proposition of law, is incorrect, we must nevertheless institute the…
2Cases cited3 opinions
- The BANK OF COLUMBIA v. PATTERSON’S Adm’rSupreme Court of the United States · 1813
- Felton v. DickinsonMassachusetts Supreme Judicial Court · 1813
- Armstrong v. TaitSupreme Court of Alabama · 1845
3Cited by2 opinions
- Vincent v. RogersSupreme Court of Alabama · 1857
- Atlanta Life Ins. Co. v. CanadySupreme Court of Alabama · 1932