Voorhies v. Benham

5 Ky. 572

• Court: Court of Appeals of Kentucky
• Decided: July 1, 1812
• Status: Published

Opinion

OPINION of the Court, by

Judge Losan.

— -This is an action of assumpsit, founded on a writing for the payment of the sum of § 55 in cabinet work. The only question which seems necessary to determine is, whether the want of an averment of a consideration is the declaration is fatal in this case ?

In actions of assumpsit, not founded upon mercantile instruments, if there is no consideration the action will not lie ; and it is indispensable to the plaintiff’s right of recovery, that what is essential to maintain the action, must be averred or set out in his declaration. The judgment is therefore erroneous.

*

Wherefore it is considered by the court, that the judgment of the circuit court be reversed, the cause remanded with leave for the plaintiff below to amend his declaration, if he applies for such leave ; otherwise for the judgment of the court to be entered in favor of the defendant below, for want of a sufficient declaration.

The same principle was adjudicated in Griggsby vs. Smedley at this term, apon a note promifing “ to pay a horfe of the value of eighty dollar*,"