State Street Methodist Church v. Gordon
STATE STREET METHODIST CHURCH v. JOHN L. GORDON
Headnotes
Summary
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
Opinion of the Court
Text extracted by OCR from a scanned original; check the original for exact wording.
The opinion of the court was delivered by Vredenburgh, J.
There being no bill of exceptions in? this case, the errors are all necessarily assigned upon the record.
The first error assigned is, that the matters contained in the declaration are not sufficient in law to maintain the action; but the declaration has, among others, the common counts for work done and goods sold, in the usual form, and however faulty the other counts may be, these are certainly’ good, and the faulty ones cannot, under the act, Nix. Dig. 416, § 38, * be assigned for error.
The second error assigned is, that it appears by the record that the action was brought for materials furnished to and used by one Page, in the erection of defendants’ church. But this only appears so, in some of the counts, but does not so. appear in the common counts. In the common counts the claim is for work done and goods sold by Gordon to the church. The claim is, therefore, perfectly legal under the common counts, and no error appears in this regard.
The next error assigned is,.that, by the record, it appears that the verdict of the jury is not in response to the issue formed. This point was not referred to on the argument here, nor could it avail if it had been. The issue is in assumpsit and the verdict is guilty, and an assessment of damages. It is, at most, but a technical irregularity, and amendable under the statute. Nix. Dig. 670, pl. 166. †
Upon the argument the plaintiff in error produced what was admitted to be the copy of the bill of particulars served upon him by the plaintiff below, and contended that it *266 showed only an account against E. W. Page & Co., and not an account against the plaintiff in error, and therefore that the judgment should be reversed on that account. But this could not be done for various reasons. It is no part of the record — there is no error assigned upon it. . It should have been taken advantage of in some other stage of the proceedings and in some other form; and more than all this, the bill shows, upon its face, an account against the plaintiff in error and not against Page & Co.
I see no reason to reverse. Let the judgment be affirmed.
Rev., p. 876, § 186.
Rev., 869, § 138.
How later courts describe this case
No later court has written an explanatory parenthetical about this case yet.
Cited by 0 cases
No case in this database cites this case.