Nunez v. Dautel

ERROR to the Circuit Court for the Southern Destrict of Georgia.

Joseph Dautel sued in the court below, I. M. Nunez and others, trading in partnership as I. M. Nunez & Co. The action was assumpsit, and the suit was brought on the 10th of September, 1870. The declaration contained two counts. The first was upon an instrument described as a due bill, whereby the defendants acknowledged to be due and promised to pay to the plaintiff the sum of $1619.66. The second count claimed the same amount upon an account stated. It appeared by the bill of exceptions that upon the trial the plaintiff gave in evidence an instrument, which was as follows:

'COLUMBUS, GA., September 1st, 1865.

'Due Joseph Dautel, or order, $1619.66, being balance of principal and interest for four years and six months' services. This we will pay as soon as the crop can be sold or the money raised from any other source, payable with interest.

'I. M. NUNEZ & CO.'

The execution of the instrument was admitted. The plaintiff gave no other evidence.

The defendants thereupon 'requested the court to charge the jury that if the plaintiff had proved a special agreement which was still operative, he could not recover for an account stated; whereupon the court charged the jury that the paper introduced did not prove such special agreement, and directed the jury upon the evidence to find a verdict for the plaintiff.' The jury found accordingly, and judgment was entered upon the verdict.

The only point presented for the consideration of this court was whether this instruction was properly given.

Mr. R. J. Moses, for the plaintiff in error, contended that the instruction was erroneous; that in indebitatus assumpsit, the promise, either express or implied, was the gist of the action; that in this case, there being an express promise, none could be implied; that the express promise in the case being conditional, would not alone support the verdict; and that the question in issue had been, as he conceived, adjudged in Tanner v. Smart.

Messrs. J. D. Pope and R. McPhail Smith, contra, citing Smith v. Forty, and other cases.

Mr. Justice SWAYNE, having stated the case, delivered the opinion of the court.