Bashar v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Co.

Robinson, Judge: The demurrer to the declaration was properly overruled. The pleading is not subject to the criticism that it does not allege a promise to pay, and therefore is not good in assumpsit. It is a declaration on a contract to carry goods. The promise and undertaking safely to carry and deliver is plainly averred. The declaration as a whole has been copied from the form given in 4 Minor’s Institutes, 3d ed., pt. 2, page 1682. It is undoubtedly good. Plaintiff’s counsel seems to think it is not good because it does not allege a promise of payment. But it is not based on a case for the payment of money. It is based solely on a case for the carriage of goods. The promise to carry, not a promise to pay, is therefore the gist of the assump-sit. The failure to fulfil a promise safely to carry and deliver [40] the goods is the breach laid. From the promise and its breach impliedly arises the obligation for damages. The other questions presented can not be decided without a consideration of the evidence introduced at the trial of the action. The evidence is certified and printed -with the record; but has not been made a part thereof by a bill" of exceptions. We are therefore precluded from looking to the same. The judgment will be affirmed. Affirmed.