Norton v. Allen

10 Ky. 284, 3 A.K. Marsh. 284, 1821 Ky. LEXIS 109

• Court: Court of Appeals of Kentucky
• Decided: April 10, 1821
• Status: Published

Opinion

The Chief Justice

delivered the opinion.

This was an action oi assumpsit brought by Allen against Norton and Boswell. On the trial of the general issue, the plaintiff produced in evidence, the following writing:

Received, Lexington, February 4, 1819, of Green-berry Allen, four thousand four hundred and sixty-four pom ds of tobacco, at five dollars per 100/6 pavable 1 dav of ¡March 1819. GEORGE NORTON,'

THOMAS E. BOSWELL.

And proved its execution; to the admission of which the defendants objected, but the court overruled their objections and admitted the writing to go in evidence to the jury, to which the defendants exeepted, and a verdict and judgment having been rendered against them, they have appeal-‘0 ⅛⅛ court.

The writing was, no doubt, inadmissible. It plainly imports a contract for the payment of the price of the tobacco’ al time mentioned. and being signed by the defendants, has the force and effect of a specially under the act of 1811, concerning civil proceedings. It therefore merged the simple contract, and as was decided in the case of M’Dowel against Greenup’s ex’rs. Fall term 1820, 2 Marshall, 568, could not be given in evidence in support of the action of assumpsit.

Huggin for appellant.

The judgment must, therefore, be reversed with costs, and the cause be remanded for proceedings to be had, not inconsistent with this opinion.