
    CHARLESTON.
    Bashar v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Co.
    Submitted June 10, 1912.
    Decided October 21, 1913.
    1. Assumpsit, Action of — Declaration—Sufficiency.
    A declaration in assumpsit based on a promise and undertaking safely to carry .and deliver goods, needs no averment of a promise to pay money, (p. 39).
    2. Appeal and Error — Bill of Exceptions — Evidence.
    Evidence introduced, at the trial of an action but not made part of the record by bill of exceptions will not be considered on appeal, (p. 40).
    (Miller, Judce, .absent).
    Error to Circuit Court, Ohio County.
    Action by. William Bashar against the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant brings error.
    
      Affirmed.
    
    
      J. B. Sommerville, for plaintiff in error.
    
      John J. Coniff, for defendant in error.
   Robinson, Judge:

The demurrer to the declaration was properly overruled. The pleading is not subject to the criticism that it does not allege a promise to pay, and therefore is not good in assumpsit. It is a declaration on a contract to carry goods. The promise and undertaking safely to carry and deliver is plainly averred. The declaration as a whole has been copied from the form given in 4 Minor’s Institutes, 3d ed., pt. 2, page 1682. It is undoubtedly good. Plaintiff’s counsel seems to think it is not good because it does not allege a promise of payment. But it is not based on a case for the payment of money. It is based solely on a case for the carriage of goods. The promise to carry, not a promise to pay, is therefore the gist of the assump-sit. The failure to fulfil a promise safely to carry and deliver the goods is the breach laid. From the promise and its breach impliedly arises the obligation for damages.

The other questions presented can not be decided without a consideration of the evidence introduced at the trial of the action. The evidence is certified and printed -with the record; but has not been made a part thereof by a bill" of exceptions. We are therefore precluded from looking to the same.

The judgment will be affirmed.

Affirmed.  