Pettibone v. Pettibone

4 Day 175

• Court: Supreme Court of Connecticut
• Decided: June 15, 1810
• Status: Published

Opinion

N. Smith, J.

This was an action of assumpsit for mo* ney collected on certain promissory notes, the property of the plaintiff. Qn trial to the jury, the plaintiff gave in evidence a writing under the hand of the defendant, wherein he acknowledges the receipt of the notes to collect, or return, and then promises to account for, or return the notes, when demanded. The plaintiff then offered parol evidence to show, that the money was in fact collected by the defendant; which was objected to, on the ground that the action should have been either an action of account, or an action founded on the written contract. The court overruled the objection; and a motion for a new trial was filed on that account. The evidence offered was, in my opinion, clearly relevant to the issue, and was properly admitted^

If the evidence, when all taken together, would not; support the plaintiff’s action in its present form, the defendant might pray the court to charge the jury to that effect; and an incorrect charge, or omitting to charge them 'on the point, would have been ground for a new trial. Nothing appears, however, to evince the impro-prietyofthe present form of action. The writing exhibited in this case cannot be considered as a specialty, either by the rules of the common law, or any practice peculiar to this state. And the court will not turn the party round to his action of account, unless they perceive a necessity for the oath of the defendant in accounting before auditors. - No such necessity is apparent in this case.

The other judges severally concurred.

New trial not to be granted.