Haynes v. Woods , 1 Stew. 12 ( 1827 )

JUDGE WHITE

delivered the opinion of the Court.

By the contract as proved, the defendant was to pay the greater part of the price of the lot in boarding. This, from the admission of the plaintiff, was the only part remaining unpaid. This, differs from a payment in money. The defendant could not have performed this part of his contract until the plaintiff had offered to board with him, and it was necessary that the plaintiff should have made this offer to render his right of action complete. If so, it was necessary to prove it, and if necessary to prove it, he should have alleged it in his declaration. Blit such an averment would have been unintelligible, unless accompanied by a statement of the contract from which his right to demand the boarding arose; the contract then should have been declared on. It was too special to be given in evidence under the common counts.

The judgement must therefore be affirmed.

Judge Crenshaw not sitting.