Kalfus v. Watts

Opinion of the Court, by

Judge Owsley.

THIS writ of error is brought to reverse a judgment obtained by Watts, on a petition and summons prosecuted by him against Kalfus in the court below. The assignments of error question the propriety of maintaining a petition and summons on the writing upon which this action is founded. This objection is taken upon the supposition that in an action at common law upon the writing, it would be necessary for Watts to aver in his declaration the existence of a fact extraneous from the writing, and which, according to the forms of petitions as prescribed by law, cannot be averred in a petition. We think, however, that no such averment would be necessary in an action at common law on the writing. It is true, there exists some ambiguity in its phraseology, and at first, a doubt occurred as to its proper construction; but, upon further reflection, we think it must he understood to contain a promise to pay the amount for which judgment was obtained, with an admission that Kalfus, the obligor, was entitled to a credit for the amount of freight mentioned in the writing. The amount of that credit, however, is a matter proper for defence in the usual and appropriate way, and not necessary to be averred by the plaintiff in his declaration.

Note.—The following is a transcript of the note: “Due Frederick Kalfus one hundred thirty-nine pounds one shilling, the freight to be deducted out of it. August 27th, 1810. Peter Watts.”

If we are correct, then, in the position that the writing should be considered as a promise to pay a specific sum, it results there is nothing in the objection that a jury should have intervened to assess the amount of recovery. We are, therefore, of opinion that the judgment of the court below is correct, and must be affirmed with costs and damages.