Gist v. Cicot

4 Blackf. 126, 1835 Ind. LEXIS 51

• Court: Indiana Supreme Court
• Decided: December 4, 1835
• Status: Published

Opinion

Blackford, J.

This is an action of assumpsit for goods sold and delivered. The declaration is to the following effect: For that whereas the defendant, &c.—in consideration that he was indebted to the plaintiffs in the sum of 116 dollars, for divers goods, &c., before that time sold and delivered to him and at his request,—undertook and then and there promised the plaintiffs to pay them so much money as the goods, &c. were worth. And the plaintiffs aver that the goods, &c. were worth 116 dollars. Yet the defendant hath not paid, &c. Special demurrer to the declaration and judgment for the defendant.

This declaration commences in the form of a count in indebitatus assumpsit. It states that the goods had been sold to the defendant for a certain sum of money, to wit, for 116 dollars. But when the declaration comes to set out the promise, it abandons the previous description of the contract, and leges that the defendant’s promise was to pay for the goods,— not a specific price, but what they were worth; and it then avers that the goods were worth 116 dollars. So that this latter part of the declaration is in the form of a quantum valebant count.

A. S. White and H. Chase, for the plaintiffs. C. W. Ewing and S. C. Sample, for the defendant.

The incongruity, in these two parts of the declaration, renders the count objectionable, at least in form. It is not in proper form as a declaration in indebitatus assumpsit, because the promise is alleged to be for the payment of what the goods were worth. And it is not good, in form, as a quantum valebant count, because in setting out the consideration of the promise, it alleges that the goods were sold for a stipulated price.

The demurrer to the declaration sets out the objections to it, and was correctly sustained by the Circuit Court.

Per Curiam.

The judgment is affirmed with costs. To be certified, &c.