76 Miss. 289 | Miss. | 1898
delivered the opinion of the court.
The action of the trial court in sustaining the demurrer to appellant’s special plea was correct, in the light of several decisions of the United States supreme court construing section 3477, revised statutes of the United States, 1878 (2d ed.); United States v. Gillis, 96 U. S., 407; Spofford v. Kirk, 97 U. S., 484, and McKnight v. United States, 98 U. S., 179.
The plea sets up not the assignment of a warrant or voucher issued in settlement of a claim allowed, but of a claim or demand for work unperformed, with a power of attorney to Street and Herzog, the trustees or committee, to prosecute the unfinished work and to collect moneys that might thereafter become due.
But the court proceeded on the erroneous view, throughout the trial, that the suit was an action of assumpsit on an open account, and that the items embraced in the account might be established by the affidavits made for the Melton Hardware Company and filed with the account. This was not an action of assumpsit for materials sold by the hardware company to Stowell & Co. Tt was a suit upon a bond, with distinct assignment of breach of the bond, in the usual and ordinary form. The reference in the declaration to the materials furnished by the hardware company to Stowell & Co., and the filing of the itemized account as an exhibit, were intended only to show the measure of the damages recoverable for the breach of the bond sued on. Section 1801, code of 1892, has reference to suits upon open accounts only, and has no application in suits upon bonds, and plainly the present suit was upon the bond. The plaintiff below should have been required, by competent evidence, to establish two things: First, the correctness of the items embraced in the account, and, second, that these items were for materials furnished for the construction of the court
Reversed and remanded.
