Crosby v. Tichenor ( 1843 )

Blackford, J.

The plaintiffs in error sued the defendant in assumpsit before a justice of the peace. A statement of demand was filed, which is in substance as follows:

That on, &c., at, &c., the defendant, by a certain writing, acknowledged to have received from the plaintiffs, by the style of 0. and 8. Crosby, certain bottles of cough drops at thirty-seven and a half cents a bottle, promising to sell said bottles of drops for the plaintiffs and pay them said price for those sold, and return those unsold when called for; that on, &c., at, &c., the plaintiffs demanded payment for such of said bottles as had been sold, and a return of those unsold; yet the defendant, though often requested, did not pay the plaintiffs for the bottles so sold, or any part thereof, nor would he return the residue which were unsold. Damage $100.

The defendant moved that the suit be dismissed for want of a sufficient cause of action; but the motion was overruled.

The justice tried the cause, and gave judgment for the plaintiffs. The defendant appealed.

lí. A. Lockwood and D. Mace, for the plaintiffs. II. S. Lane and 8. G. Willson, for the defendant.

*In tbe Circuit Court, the cause was dismissed on motion of the defendant, on the ground that the statement of demand was insufficient.

We think this cause ought not to have been dismissed. The declaration is informal, but it is quite sufficient for a justice's Court.' It is objected to for not averring a sale of any of the bottles of drops, or a demand and refusal to account for those sold. The statement is, that the bottles were left with the defendant to be sold or returned, and that payment for such as had been sold, and a return of the residue, had been demanded and refused; and that is sufficient.

Per Chiriam.—The judgment is reversed with costs. Cause remanded, &e.