Mullins v. Cabiness , 1 Minor 21 ( 1820 )

• Judge Sajfold

delivered the opinion of the Court.

As to the first assignment — The plaintiff acquiesced in the opinion of the Court, on the demurrer to his first declaration, and asked and obtained leave to amend. This judgment therefore was not final, and-is not in our opinion subject to revision here.

As to the second assignment — It is contended by the ap-pellee that the term of service commenced from .the date of the articles, in which no time is mentioned for beginning the services, and which cannot be explained by parol evidence. But the appellee agreed to pay the money on the ■first day of January 1818, some timé before the expiration of 12 months from the date of the. articles of agreement. .If the term of service was as the counsel for the appellee contends, the averment of performance in, the declaration was unnecessary and mere surplusage, (2 John. 272, 387. 10 John. 204.) If the term was as is contended by appellant, there is a sufficient averment of performance of the covenants on his part. But we' consider the covenants as independent. The second demurrer ought to have been overruled.- The judgment must be reversed; and as the written articles ascertain the sum due, judgment must be render-' ed here for that sum and interest. Laws Alaba. 465, sect. 3.

Judges Clay and- Webb not sitting..