
    Wooddy v. Flournoy.
    Decided, Feb. 15th, 1820.
    i. Assumpsit — Declaration—Express Promise, — In as-sumpsit upon a written agreement, an express-promise ought to be laid in the declaration: a mere recital of the writing, tho’ a true copy, is not sufficient.
    See Cooke v. Simms, 2 Call, 39 S. P.
    s. Same — Same—Same—Case at Bar. — The declaration was upon a general indebitatus assumpsit, for the hire of üve slaves, for which the defendants, being co-partners, promised, on the 1st of January, 1814 to pay the plaintiff the sum of $350, when they should be thereunto afterwards required: — the plaintiff could not recover upon a writing signed by one of the defendants, certifying that he had hired of the plainli ff live slaves at the price of $350, and that this should entitle the plaintiff to the other defendant’s bond for the same, payable on the 1st of January 1811.
    This was an action of assumpsit in the Superior Court of Chesterfield County, instituted in March 1814, by William Flour-noy against Samuel Wooddy and Cornelius Buck late co-partners in working Railey’s coal pits. «
    The declaration contained two Counts; the first, a general indebitatus assumpsit for the hire of five slaves of the plaintiff, for which the defendants on the 1st day *of January 1811, promised to pa3' him the sum of three hundred and fifty dollars, when they should be thereunto afterwards required: — the second a special Count, as follows; “and whereas, on the 13th day of January 1810, at the parish and County aforesaid, the said defendant Samuel Wooddy, acting for and on behalf of himself and the said defendant Cornelius Buck, then partners as aforesaid in working Railey’s coal pits in the said County of Chesterfield, made an agreement in writing with the said plaintiff, in these words and figures, to wit: — -“This is to certify that I have this day hired of Dr. William Flournoy five hands at the price of three hundred and fifty dollars, their time insured by their master; and the said hands to work in Martin Railey’s coal works the present year; to be cloathed as usual: and this shall entitle Dr. Flournoy to Cornelius Buck’s bond for the same, payable on the first day of January 1811;” which agreement is signed by the said Wooddy, and dated the day and year in this Count first above mentioned; and the plaintiff avers that he did every thing which on his part he was bound by the said agreement to do; by virtue whereof, and the above recited agreement, the said plaintiff became entitled to demand of the said defendants co-partners as aforesaid, the said Cornelius Buck’s bond for the said sum of three hundred and fifty dollars, payable to the said plaintiff on the said first day of January 1811; yet the said defendants have not fulfilled or performed their agreement aforesaid, in this, that they or either of them (although they have been often thereto required, and, particularly, on the day of in the year , and again, on the . day of in the year ,) have not delivered the said plaintiff the said Cornelius Buck’s bond, payable to the plaintiff on the 1st of January 1811, but have altogether refused so to do; and also in this, that the said defendants, or either of them, did not return the said negroes at the expiration of the term of their hiring, cloathed as usual: — by reason whereof, and of the breach by the *said defendants of their promise in the first Count herein above set forth, the plaintiff saith he is damaged six hundred dollars, and thereof he bringeth suit.”
    The defendants pleaded, separately, non assumpsit. On the trial, the Jury found a special verdict, that, on the first day of January 1808, certain articles of co-partnership were made and entered into between the defendant Wooddy and the defendant Buck, for working in partnership certain coal mines in the County of Chesterfield called Bailey’s coal pits; which articles were found in hsec verba; that, on the 13th of Januarj' 1810, the plaintiff hired five slaves to work at the said coal pits, which hiring and the term^ thereof were evidenced by a writing of the same date last aforesaid, signed by the defendant Wooddy, and then delivered to the plaintiff, which writing (being the same recited in the declaration,) was also found in hasc verba: —that, before institution of this suit, to wit, early in the year 1813, the plaintiff demanded of the defendant Buck, his bond for the amount of the hire of the plaintiff’s slaves in the said writing mentioned; with which demand he refused to comply: — -that, before the institution of this suit, to wit-, in the spring of the year 1813, the plaintiff demanded of the defendant Wooddy that he would execute and deliver to him, his own bond for the amount of the said hire, with which demand he refused to comply: — 'that, in the year 1811, the plaintiff told a witness, that he had the year before hired five hands to the defendant Wooddy for the defendant Buck; and that they had been returned naked; but that he did not blame Wooddy therefor; for that he looked to Buck alone: — that, during the year 1810, for which the said slaves were hired as aforesaid, they once ran away from the said pits, and went home to the plaintiff, who brought them back to the said coal-pits with out delay, and delivered them to Wooddy, who being about to correct them for running away, the plaintiff objected to his doing so, saying that Wooddy should have nothing to do with the said slaves; for that he the plaintiff did not look to him but to Buck for the hire thereof; that, during the same year 1810, two other persons *hired slaves to Wooddy for the use of the said Bailey’s coal-pits, and received from him similar orders on Buck for his bonds for the amount of hires respectively ; and that, on presenting such orders to Buck, he gave his bonds accordingly, which he afterwards paid off; to wit, during the year 1811, or early in the year 1812: that the partnership aforesaid, between the said defendants, was dissolved in the month of December 1810, but no public notice of such dissolution appeared to have been given by them, or either of them:— that, during the year 1810, orders for' bonds for hand-hire were frequently drawn by Wooddy on Buck, which orders were similar to those before mentioned; and that, until the latter part of the year 1810, those orders were uniformly complied with by Buck by his executing and delivering bonds according thereto; that Buck became embarrassed in the year 1811, and utterly insolvent in July or August of 1812.
    The verdict concluded in the usual- form ; finding conditionally for the plaintiff, and assessing his damages to $350, with legal interest thereon from the 1st day of January 1811 ’till paid, &c.
    The Superior Court gave Judgment for the plaintiff; from which the defendant Wooddy appealed.
    Samuel Taylor for the appellant.
    L,eigh for the appellee.
    
      
       Assumpsit — Declaration—Express Promise. — In an action of assumpsit on a written agreement, there must be an express allegation of the promise, and a mere recital of the writing in htee verba, is not sufficient. To this point, the principal case is cited in Burton v Hansford. 10 W. Va. 475,477; Quarrier v. Feabody Ins. Co.. 10 W. Va. 527. See further, monographic note on "Assumpsit” appended to Kinnard v. Jones, 9 Gratt. 183.
    
   JUDGE) BOANE)

delivered the Court’s Opinion.

The Court is of opinion that the second Count in the declaration is defective in this; that it does not aver that the appellant and his partner' promised that the appellee should receive the bond of Cornelius Buck, but only sets out the writing in which such promise is alledged to be contained, as in the case of Cooke v. Simms in this Court, The Court is also of opinion that the ap-pellee is not entitled to recover on the first Count, it being a general indebitatus as-sumpsit; because the special agreement set out in the Verdict does not authorise such a recovery; it not being for the stated sum due for the hires of the negroes in question, but, at most, only binding the appellant and his partner for such damages as might have been assessed for a refusal to furnish the bond aforesaid. *The agreement found, differs from the evidence called for by that Count, also, in this, that the former would have warranted a suit by the appellee before the expiration of the year, whereas the case made by the said first Count, pre-supposes the lapse of the said year before the accruing of the Action.

On this ground, the Court reverses the judgment, and enters one for the appellant; without deciding, absolutely, how far, if the said second Count had not been defective as aforesaid, the appellant would have been discharged from his liability by reason of the laches of the appellee. 
      
       2 Call 39.
     