Crowdus v. Hutchings

30 Ky. 43, 7 J.J. Marsh. 43, 1831 Ky. LEXIS 305

• Court: Court of Appeals of Kentucky
• Decided: November 9, 1831
• Status: Published

Opinions

Judge Buckner

delivered the opinion of the Court.

This was an action of assumpsit, prosecuted by Hutchings against Crowdus. It was tried on the general issue, and a verdict rendered for the defendant in error, for $1637 11. The court having overruled a motion for a new trial, made by Crowdus, judgment was entered against him; to reverse which he prosecutes this writ of error.

Two points only are presented, which it is considered necessary to notice; 1st. Did the court .err in refusing to exclude from the jury an account offered by Hutchings? 2d. Did it err in rejecting the testimony of Todd, a witness introduced by Crowdus?

To authorise antí7nsimu¡n computassent omit, it. ¿aMth feoesJ item of phSntiff’s account be nroved, provided it is proved that the parties gother^and0" defendant aoknowledged certain w™ due the plaintiff. When circuit court has rejected testimony which was imdmissucceeded'^ ^ that of a witneasintroducposite party, and the reShewat°what time the rejected testiSreif "the*" judgment Will ed bectiusc^of the rejection-of the testimony.

The account alluded to, consisted of various items, amounting in the aggregate to $1968. At the foot of it was the following memorandum: “The above accpt. is entitled to a credit of $330 98, for a balance on sett'emenC between Crowdus and Hutchings, February 18th 1829,” which was signed with the name of Crowdus; and the signature proved to be in b‘s handwriting. The correctness of each particular item of the account, was not supported by the proof; but among otb'W counts in the declaration, was one on an insinúa computassent.

The memorandum attached to the account, does not amount to an express promise t-o pay. If it did, assuinPs^ would not have been the appropriate remetly. But on the count mentioned, it was not necessary to authorize the verdict returned, that the-.^ems-of tlies account should have been proved. If the parties accounted together, an acknowledgment by Crowdus, that a sum certain was due, created an implied promise on his part, to pay the amount. There to be sure, no positive proof, that they had so accounted; yet it was such as justified the court in submitting it. to the determination of the jury.u'Tt was a pr0per subject for their decision; and the court therefore, did not'err in the opinion advanced, nor in refusing to grant a new trial, on the ground that the verdict was contrary to the evidence.

Todd’s testimony, if admissible at all, was clearly not so, unless it succeeded that of a witness introduced by Hutchings, which it is insisted rendered it important. But it does not appear from the record, at what stage of the trial it was offered, and we not presume, in the absence of proof shew* ing Rj that the court erred.

The judgment therefore affirmed, with costs;

(Judge Underwood dissenting.)