First v. Bonewitz

Blackford, J. Bonewitz sued First in assumpsit. The declaration contains four counts. The first count is to the following effect: For that the defendant, on, &c., executed to the plaintiff a’receipt as follows: “ May 8, 1837. Received of Joseph Bonewitz the sum of 100 dollars paid in land,” Meaning that said sum of 100 dollars was paid by the plaintiff for said defendant. (Signed,) “Israel First.” By which receipt the defendant acknowledged to have received from the plaintiff said 100 dollars; and in consideration thereof, after-wards agreed to pay said sum to the plaintiff when he should be thereunto requested. The plaintiff afterwards demanded payment of said sum, which the defendant refused to pay. The other counts are the common ones for money lent, money paid, and for money had and received. The defendant pleaded to the whole declaration, non assumpsit and the statute of limitations. R. Brackenridge, Jr., for the plaintiff. J. R. Slack, for the defendant. General demurrer to the special plea, and the demurrer sustained. The cause was tried on the general issue, and a verdict and judgment rendered for the plaintiff. The special plea being demurred to, we must examine the declaration; and we think the first count is insufficient. The defendant’s receipt there mentioned is, as we understand it, as follows: “ May 8, 1837. Received of Joseph Bonewitz the sum of 100 dollars paid in land.” That receipt, of itself, shows no contract implying a consideration ; nor does it, of itself, show a sufficient consideration for the alleged promise, that is, a benefit to the defendant or a detriment to the plaintiff. The count we are considering says, by way of innuendo, that the instrument means that the sum óf 100 dollars was paid by the plaintiff on land for the defendant'. We are not able, however, from the terms of the instrument, to give it that meaning. Indeed, the instrument is so ambiguous on its face, that we cannot assign to it any definite meaning whatever. The first count, therefore, contains no cause of action. There is no objection to the other counts; and to those counts the special plea is a good bar. It is of no consequence whether that plea is valid or not in regard to the first count, for a bad plea is sufficient for a bad count. The special plea being a good defense to all the legal causes of action described in the declaration, the demurrer to it should have been overruled. The judgment for the plaintiff is consequently erroneous, and must be reversed. Per Curiam. The judgment is reversed, and the verdict set aside with costs. Cause remanded, with leave to the plaintiff to amend the first count. /. S. Buckles and J. Brownlee, for the plaintiff. J. Smith, for the defendant.