Pringle v. Samuel

4 Ky. 172

Opinion

OPINION of the Court, by

Ch. J. Edwards.

— -The, first error assigned does not exist; the second is immaterial ; the third is not supported by the record; the fourth questions the propriety, conduct and opinion of the court, as stated in the bill of exceptions. The declaration contains two counts, one for work and labor, done for a price settled and agreed on by the parties, and, the other upon a quantum valebat. By the bill of exceptions, it appears that there was a special agreement between the parties that the work was to be paid for in trade or property ; upon which testimony the court were applied to, to direct the jury to find for the defendant. The court refused to hear the motion argued, and said, if they were to give any directions, they would direct the jury to find for the plaintiff; and the testimony appears to have been given by the plaintiff himself.

Though the directions were somewhat informally prayed for, the question before the court was properly made. And we think that where there is a special agreement it ought to be declared on, and cannot be given in evidence under general counts only : and where declared on, it must be proved as laid. Otherwise, the plaintiff is not entitled to a verdict, and this direction should have been given by the court.

Judgment reversed.