Hunt v. Mansur

5 Blackf. 214, 1839 Ind. LEXIS 106

• Court: Indiana Supreme Court
• Decided: November 22, 1839
• Status: Published

Opinion

Sullivan, J.

Assumpsit for goods sold and delivered of the value of 150 dollars. The defendant, professing to answer part only of the plaintiff’s declaration, pleaded that as to 125 dollars, part of the said sum of 150 dollars, &c. he the said defendant had paid the same to the plaintiff by the sale and delivery of a waggon of that value, &c. The plaintiff replied that the 'defendant did not sell and deliver to him a waggon for the sum of 125 dollars in part payment of said demand, and that no such waggon was ever accepted by the plaintiff in payment of any part of said claim. A general demurrer was filed to the replication, which was overruled by the Court. The plaintiff thereupon prayed judgment for so much of his demand as was unanswered by the plea. The assessment of damages was, by consent of parties, submitted to the Court. The plaintiff in error contends, that, because the plaintiff below replied to the plea of the defendant, without praying judgment for so much of his demand as was unanswered by the plea, it operated as a discontinuance of the action. Regularly, the plaintiff should not have replied to the defendant’s plea, without taking judgment for the part unanswered by the defendant. A mistake of that kind, however, may be .rectified at any time during the same term. This was done by the plaintiff in the present case, praying judgment for the part unanswered immediately after the demurrer to the replication was overruled. According to the cases of Market v. Johnson, 1 Salk. 180, Vincent v. Boston, 1 Ld. Raym. 716, and Woodward v. Robinson, 1 Str. 302, this was sufficient to prevent the discontinuance. See also 1 Saund. 28, note h

(1).

C. B. Smith, for the plaintiff. S. W. Parker, for the defendant.

Per Curiam.

The judgment is affirmed with costs.

Vide Fitch v. Polke, ante, p. 86.—Cross v. Watson et al. Vol. 6 of these Rep. 129.