Thayer v. Campbell's Administrator

Court of Appeals of Kentucky

Thayer v. Campbell's Administrator

5 Ky. 472

DecidedJuly 1, 1811

StatusPublished

This text of 5 Ky. 472 (Thayer v. Campbell's Administrator) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Thayer v. Campbell's Administrator, 5 Ky. 472 (Ky. Ct. App. 1811).

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Opinion

OPINION of the Court, by

Judge Clark.

This was an action of debt, brought by John Campbell, as-signee of Josiah Stephens, against Levi Thayer, on the following writing : u Washington City, February 3d, A. D. 1805, borrowed and received of Doctor Josiah Stephens, one hundred dollars in cash, and one silver Watch, valued at twenty dollars, which I promise to ac-compt for.” Pending this suit Campbell died, whereupon it was revived in the name of John T. Bell, his administrator. The defendant demurred generally to the declaration, which was overruled by the court and judgment for the plaintiff, from which the defendant has appealed to this court.

There seems to be but a single question for our determination : Can the action of debt be maintained for the price of the watch mentioned in this writing ? The action of debt is founded upon a contract, in which the certainty of the sum appears, and in which the plaintiff is to recover the sum he goes for innúmero, and not in damages. If this agreement is to be understood as a promise to pay the price oí the watch, the demurrer was properiv overruled ; if not, it should have been sustained. For debt lies only on a promise to pay money, and not property. The obvious meaning ot the parties to this agreement was, that the writing should be an evidence of the loan of the watch, and not of a sale of it for §20. The writing, though a little obscurely worded, cannot be extended further than an acknowledgment of having borrowed of Stephens S100 in cash, and that he had received of him a watch, which he would account for ; if he had received it to be accounted for by him, it was evidently not a commutation of it for its value absolutely. And according la; the legal operation of this writing, Stephens could re-| [473]*473cover cl images oaly for a failure to return the watch.

Jndjnr.'-xt reversed, and verdict set aside, with direc-ti.:'; .ocrtx-í a judgment in favor of the defendant on the demurrer.

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OPINION of the Court, by

Judge Clark.

This was an action of debt, brought by John Campbell, as-signee of Josiah Stephens, against Levi Thayer, on the following writing : u Washington City, February 3d, A. D. 1805, borrowed and received of Doctor Josiah Stephens, one hundred dollars in cash, and one silver Watch, valued at twenty dollars, which I promise to ac-compt for.” Pending this suit Campbell died, whereupon it was revived in the name of John T. Bell, his administrator. The defendant demurred generally to the declaration, which was overruled by the court and judgment for the plaintiff, from which the defendant has appealed to this court.

There seems to be but a single question for our determination : Can the action of debt be maintained for the price of the watch mentioned in this writing ? The action of debt is founded upon a contract, in which the certainty of the sum appears, and in which the plaintiff is to recover the sum he goes for innúmero, and not in damages. If this agreement is to be understood as a promise to pay the price oí the watch, the demurrer was properiv overruled ; if not, it should have been sustained. For debt lies only on a promise to pay money, and not property. The obvious meaning ot the parties to this agreement was, that the writing should be an evidence of the loan of the watch, and not of a sale of it for §20. The writing, though a little obscurely worded, cannot be extended further than an acknowledgment of having borrowed of Stephens S100 in cash, and that he had received of him a watch, which he would account for ; if he had received it to be accounted for by him, it was evidently not a commutation of it for its value absolutely. And according la; the legal operation of this writing, Stephens could re-| [473]*473cover cl images oaly for a failure to return the watch.

Jndjnr.'-xt reversed, and verdict set aside, with direc-ti.:'; .ocrtx-í a judgment in favor of the defendant on the demurrer.

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Bluebook (online)

5 Ky. 472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thayer-v-campbells-administrator-kyctapp-1811.