Poundstone v. Lewark

4 Blackf. 173 | Ind. | 1836

Blackford, J.

Assumpsit by Lewark and others against Poundstone, commenced before a justice of -the peace. The cause of action, described in the declaration, is in substance as follows:—

The plaintiffs on, &c., proceeded to sell out the building of a certain chimney to the lowest bidder. The defendant was the lowest bidder, and the building of the chimney was cried off to him; he thereby undertaking to build it in á specified manner, and by a certain time. Breach, that the .defendant failed to perform his contract. Damage 50 dollars.'

. Demurrer to the declaration, and judgment by the justice for the plaintiffs. The defendant appealed to the Circuit Court. The Circuit Court considering the declaration good, overruled the demurrer, and rendered a final judgment in favour of the plaintiffs, with costs of suit.

In overruling the demurrer to the declaration, the Circuit Court committed an error. The undertaking of the defendant to build the chimney, was, for any thing shown by the declaration, without any consideration whatever. It was a nudum, pactum. There is no averment that the defendant was to receive any thing for the performance of his promise. The following case on this subject occurred in England as early as the time of Henry, the 4th: “A carpenter, by parol without writing, undertook to build a new house, and, for the not doing it, the party brought an action against the carpenter, and it did not appear that he was to have any thing for building the house: it was adjudged that he should take nothing by his writ.” Powell on Cont. 331. This case is recognized as good law by all the modern decisions. Indeed, it is now settled, that even if the plaintiffs’ house had sustained a material injury, in consequence of the defendant’s not building the chimney, the action would not have lain. Elsee et al. v. Gatward, 5 Term Rep. 143. The ground of action stated in the declaration before us, is nothing more than a non-feasance where there was no consideration, and the action cannot be sustained.

J. Perry, for the plaintiff. C. B. Smith, for the defendants.

The circumstance, that this declaration was filed before a justice of the peace, makes no difference. It is defective in substance, and was therefore objectionable in a justice’s Court. Hall v. Johnson, May term, 1834.

Per Curiam.

The judgment is reversed with costs. Cause remanded, with leave to the plaintiffs below to amend their declaration, &c.