Gray v. Griffith

Decided September 15, 1840

Supreme Court of Pennsylvania · decided 1840-09-15

A. and A. R. Griffith against James Gray. This was an action on the case in assumpsit, in which the plaintiffs charged the defendant in the first count, with a note for 323 dollars. In the second count, with goods, wares and merchandize, sold and delivered on the 11th of June 1832, and a promise to pay for the same on the 1st of November 1832. The third count was on a quantum valebant for the same goods. The fourth count was for money laid out and expended.

Decided 1840-09-15

¶1The opinion of the court was delivered by

Sergeant, J.

¶2Had there been a count in the declaration for money had and received, the charge of the court would have been right, in stating that the plaintiff could waive the tortious conversion of the genuine scythes, and recover in assumpsit; for the plaintiff might go for the money, which the scythes might be presumed to have been sold for by the defendant. But the declaration, so far as it can embrace these articles, charges the defendant as purchaser, and there is no evidence that he ever was such; on the contrary, he uniformly denied this character, and his tortious acts will not authorize the viewing him as such. We, therefore, think the judgment must be reversed, and a venire facias de novo be awarded.

¶3Judgment reversed and venire facias de novo awarded.