Davis v. Watters, 3 N.C. 172, 2 Hayw. 172 (1802)

April 1802 · North Carolina Superior Court

3 N.C. 172, 2 Hayw. 172

Davis vs. Watters.

’’TpIilS action was commenced by a warrant,issued by a Justice, -*• of the Peace. It stated the demand to be for an account.— Davis’s counsel now stated that the account had arisen thus That a special agreement had been entered into between the parties, whereby it Was agreed that defendant should repair and fit the waggon of the plaintiff for the'road, the iron to be found by the plaintiff; that the plaintiff delivered to him iron accordingly, and paid him the price of the work to be done oa the waggon ; that ike defendant did not comolete what he had undertaken! bits' slid part of it only, and used but part of the iron ? for the residue pf which plaintiff bad raised hio account, He had also included in the account, par-t of the sum paid being the overplus, above what was answerable to the work done, also for deficiencies ia the work.

Taylor, judge,

(after argument.) The plaintiff must state ia his warrant the nature of his demand, so as to give notice to the defendant of what is intended to, be proved against him'; íu.-q when that ia stated he should not be allowed to vary from k¡, The cause of action now stated, is jaot an account, but a coma plaint for bon performance of a special agreement, sounding ia damages. Admitting what is contended for on the part of the plaintiff, that a demand on a special agreement, vyhere the sum to be recovered docs not exceed twenty pounds, is within the jurs-diction of a justice, it will not avail the plaintiff; for that does üot prove that when'he sues on account he may claim for non pert ioimauce of a special agreement.

The plaintiff was nonsuited,