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Genealogical Gleanings From
Reports of Cases Determined in the
Supreme Court of Alabama, 1820-1826
Brown declared against Cabiness on a special parol contract for the sale of the whole of plaintiff’s crops of tobacco at 6 ¼ cents a pound, to be delivered at Brown’s house, and averred that the delivered 8,103 pounds, and was then and there ready and offered to deliver the residue of his crop, amounting to 5,000 pounds more, which defendant neglected and refused to receive.
The proof showed that he delivered all of his crop but a small quantity of inferior quality, and not merchantable. The defendant moved the court to instruct the jury, as in case of non-suit. Motion denied. Verdict and judgment for the price of the tobacco delivered. Pending the trial, defendant took a bill of exceptions to the decision on his motion above mentioned, and assigned the matter thereof here as error.
McKinley, for plaintiff; Minor and Taylor, for defendant in error.
LIPSCOMB, J.The statement of the contract, and the only material part of the averment, was proved as set out in the declaration. The other part of the averment, taken separately from the first, was immaterial, and not calculated to mislead, and it was unnecessary to prove it.
Judges CLAY and WEBB not sitting.
Source: Henry Minor, Reporter, Reports of Cases Determined in the Supreme Court of Alabama From May, 1820, to July, 1826 (Atlanta: 1891), p. 42.
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