Wortham v. Sinclair

Lumpkin, Justice. This was an action upon an account, tried in a justice’s court, wherein the- ■ plaintiff recovered. The defendant entered an appeal to the superior court, and on the trial there the plaintiff was nonsuited. The case depends almost entirely upon the Mew to be taken of the evidence, a statement of which appears in the official report. 1. In tbe superior court tbe defendant filed a plea alleging:- “The debt claimed by the plaintiff has been fully paid off and discharged before the entering of this suit.” Tbe plaintiff’s motion to strike this plea, upon the ground that it was uncertain, indefinite and not sufficiently specific, 176 was overruled. It is obvious that the plea was lacking in several respects. However, the motion to strike, which was in the nature of a general demurrer, was itself deficient, in that it entirely failed to point out these defects. 2. "Without undertaking to say what verdict ought to have been rendered under the evidence introduced by the plaintiff, we are satisfied the case ought to have been submitted to the jury for the purpose of allowing them to pass upon the question whether or not there was an original undertaking on the part of the defendant to pay to the plaintiff the board bills constituting the subject-matter of the plaintiff’s account. Judgment reversed.