McNulty v. Collins

Opinion of the Court by Napton, Judge. This was an action of assumpsit brought by Charles Collins, against the appellant. The declaration alleged that on the 17th July, 1838, the appellant made his certain instrument of writing of that date, and thereby acknowledged [70] there was due from him to plaintiff the sum of nineteen hundred dollars, &c., payable in soap and candles, at the St. Louis market prices, for value received, which said instrument is dated at the day and year aforesaid, &c. 'And said plaintiff states that he has demanded said sum of money in SOap and candles, according to the tenor and effect of said . , , , instrument trom said defendant, but the said defendant has paid) &c., to the damage, &o. The court adhere to the decisionmado. in Muldrow that the do-assumpsit, m must aver a promseon the part of the thaTtluf’dei feet is not cu-1'Uct>y V°r" To this action defendant pleaded non-assumpsit and no consideration. Upon the issues tried,, the verdict was for the plaintiff, and defendant moved in arrest of judgment, . which motion was overruled. Whereupon defendant apPealed. Various objections are taken to the declaration. It is needless to notice but one, which is sufficiently obvious. No promise is averred. This was held a fatal objection upon a motion in arrest, in the case of Muldrow v. Tappan and others. 6 Mo. Rep. p. —. Judgment reversed.