Bashar v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Co.

79 S.E. 1009, 73 W. Va. 39, 1913 W. Va. LEXIS 146

• Court: West Virginia Supreme Court
• Decided: October 21, 1913
• Status: Published

Opinion

Robinson, Judge:

The demurrer to the declaration was properly overruled. The pleading is not subject to the criticism that it does not allege a promise to pay, and therefore is not good in assumpsit. It is a declaration on a contract to carry goods. The promise and undertaking safely to carry and deliver is plainly averred. The declaration as a whole has been copied from the form given in 4 Minor’s Institutes, 3d ed., pt. 2, page 1682. It is undoubtedly good. Plaintiff’s counsel seems to think it is not good because it does not allege a promise of payment. But it is not based on a case for the payment of money. It is based solely on a case for the carriage of goods. The promise to carry, not a promise to pay, is therefore the gist of the assump-sit. The failure to fulfil a promise safely to carry and deliver the goods is the breach laid. From the promise and its breach impliedly arises the obligation for damages.

The other questions presented can not be decided without a consideration of the evidence introduced at the trial of the action. The evidence is certified and printed -with the record; but has not been made a part thereof by a bill" of exceptions. We are therefore precluded from looking to the same.

The judgment will be affirmed.

Affirmed.