Wooddy v. Flournoy , 6 Va. 506 ( 1820 )

Judge Roane

delivered the Court’s Opinion.

The Court is of opinion that the second Count in the declaration is defective in this; that it does not aver that the appellant and his partner promised that the appellee should receive the bond of Cornelius Buck, but only sets out the writing in which such promise is alledged to be contained, as in the case of Cooke v. Simms in this Court, ^(a) The Courtis also of opinion that the appellee is not entitled to recover on the first Count, it being a' general indebitatus assumpsit; because the special agreement set oxxt in the Verdict does not authorise such a recovery; it not being for the stated sxxm due for the hires of the negroes in question, but, at most, only binding the appellant and his partner for such damages as might have been assessed for a refusal to furnish the bond aforesaid. The agreement found, differs from the evidence called for by that Count, also, in this, that the former would have warranted a suit by the appellee befbre the expiration of the year, whereas the case made by the said first Count, pre-supposes the lapse of the said year before the accruing of the Action.

On this ground, the Court reverses the judgment, and enters one for the appellaut; without deciding, abso1ute~ ly, how far, if the said second Count had not been defective as aforesaid, the appellant would have been discharg~ ed from his liability by reason of the lac/tes of the appollee.

(a) 2 Call 39.