Lassiter v. Thompson , 85 Ala. 223 ( 1887 )

CLOPTON, J.

The pleas setting up the statute of limitations, to which the demurrer was sustained; failed to aver that the demand sued on is an open account; and under the complaint proof could be made of an account stated, or of an open account. Under the form of the plea prescribedby the Code, it is necessary to aver the nature and character of the demand sued on; and we have heretofore held that a plea setting up the statute of limitations of three years'is defective, if it fails to aver that the claim is an open account. Harrison v. Harrison, 39 Ala. 489.

The verdict of the jury is responsive to the issues. The words, “the value of the five bales of cotton,” contained in the verdict, may be rejected as surplusage. Thus regarded, the legal effect of the verdict is to find the issues in favor of the plaintiff, and to assess his damages at the amount stated therein.

Affirmed.