Pursell v. Mitchell
| Decision Date | 31 March 1859 |
| Citation | 28 Ga. 196 |
| Parties | SENTELL AND PURSELL. vs. MITCHELL. |
| Court | Georgia Supreme Court |
Complaint, from Chattooga county. Tried before Judge Crook, at March Term, 1859.
This was complaint on an account by William Mitchell against Joseph Sentell and Thomas Pursell, for two hundred and eleven dollars. The bill of particulars attached to the petition was as follows, viz:
Joseph Sentell & Thomas Pursell, Dr.
To William Mitchell.
1856. To 1 pair mill rocks, mill irons and gearing, $211.00 The defendants pleaded the general issue, breach of warranty, and failure of consideration.
Upon the trial, plaintiff proved that defendants agreed to pay him two hundred and eleven dollars for the mill rocks, iron and gearing; that the plaintiff was to set up the machinery, and that defendents were to pay one hundred dollars on the 25th December, 1857, and the balance 25th December, 1858.
But the same witness who proved the above facts also testified that plaintiff had not complied with his part of the contract. Plaintiff further proved that the mill rocks and irons were worth forty or forty-five dollars, and that they went into the possession of defendants. Here plaintiff closed.
The action was commenced 7th February, 1857.
Defendants moved to dismiss the plaintiff's suit, on the grounds:
1st. That the contract was entire and mutual, and the plaintiff not having performed his part thereof, could not maintain the action.
2d. That the action was prematurely commenced, no cause of action existing at the time the writ was filed, to-wit: 9th February, 1857; and the proof showing that the first installment was not due till 25th December, 1857.
The court refused the motion to dismiss, and defendants excepted.
Plaintiff then moved to amend his declaration, by inserting a quantum merit count; defendant objected to the amendment. The court granted leave to amend, and defendants excepted.
The jury found for the plaintiff twenty-five dollars.
Whereupon defendants tendered their bill of exceptions, assigning as error the decisions above excepted to.
Jesse A. Glenn, for plaintiff in error.
Wm. H. Dabney, contra.
By the Court.—Benning, J., delivering the opinion.
Was the court right in overruling the motion to dismiss the suit?
The suit was founded on an account—an account for goods sold and delivered—not on any special contract.
The proof showed that there was a special contract, and that the contract had been broken by Mitchell, the plaintiff in the action. To be more particular, the proof showed that it was agreed by him and Sentell & Pursell, the defendants in the action, that he was to furnish them with a pair of mill stones, with mill irons and gearing, and was to put up the machinery; and that he was to do all this for $211, of which $100 was to be payable on the 25th December, 1857, and $111 on the 25th December, 1858.
The proof further showed that Mitchell had...
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