Bennett v. Davis

Decided July 1, 1873

Supreme Judicial Court of Maine · decided 1873-07-01

On exceptions. Assumpsit upon an account annexed. The count in the writ was in the common form, but the account' referred to as annexed thereto was this: “George Davis to Andrew Bennett, Dr.” “To groceries as per bill of particulars rendered, $28.52.” At the entry term of the action, the defendant filed a demurrer which was joined by the plaintiff and overruled by the justice presiding, and the defendant excepted.

Decided 1873-07-01

Daneoeth, J.

¶1A sufficient declaration must contain. all the allegations neeessary to make out the plaintiff’s case, without reference to a paper not attached.

¶2An account annexed is a part of the declaration. As each item is, or may be, a separate contract of itself, no proof in regard to such contract is admissible, unless the contract relied upon is alleged in the declaration. The bill annexed in this case shows-that different items are' relied upon, but does not state what they are.

¶3It is clear that the plaintiff cannot sustain his action, nor can he have judgment upon default, without an amendment; and where an amendment is necessary, and is not made, a demurrer will be sustained. Exceptions sustained.

¶4Declaration adjudged bad..

Appleton, C'.. J., Walton, Dickerson, Barrows and Virgin, JJ., concurred.-