Talbot v. Brockman

8 Ky. 555, 1 A.K. Marsh. 555, 1819 Ky. LEXIS 75

• Court: Court of Appeals of Kentucky
• Decided: June 7, 1819
• Status: Published

Opinion

Judge Owslf.y

delivered the opinion of the court.

This writ of error is brought to reverse a judgment recovered by Brockman, in an action prosecuted by him against Talbot in the court below.

Two questions are made by the assignment of errors.

The first involves an enquiry into the sufficiency of the declaration.

And the second contests the propriety of the decision of that court in overruling Talbot’s motion for a new trial.

The declaration is questioned upon the ground of its containing two substantive causes of action, one in tort and the other in contract.

We are, however, of opinion, the declaration cannot be construed to contain two such causes of action.

The first count is, most clearly, in tort; and with respect to the other count, it might be questioned, whether it contains any cause of action, but if any, we are of .opinion, it must be construed to be in tort, and not assumpsit.

And upon the supposition of the action being founded upon tort, there can be no doubt, but the court decided correctly in overruling Talbot’s motion for a new trial.— The evidence clearly conduced to prove a fraudulent misrepresentation, by Talbot, of the health and condition of the negro child for which the action seems to have been brought And the jury, whose proiince it was to weigh and decide upon the evidence, haying found a verdict against Talbot., we are unable to perceive anything in the record, from which this court, contrary to the opinion of the circuit court, can be authorised to. interfere and award a new trial.

The judgment must be affirmed with cost.