
    *Sexton v. Holmes.
    Argued Feb. 4th, 1813.
    Assumpsit — Declaration—Promise Must Be Charged Positively. — The plaintiff in assumpsit must charge the promise, by the defendant, positively; not by way of recital only: for if the declaration be defective in this respect, it is a fatal error, and not cured by verdict.
    See Syme v. Griffin, 4 H. & M. 277.
    In an action of assumpsit, “Hugh Holmes complained of Joseph Sexton, in custody &c., of a plea, for this, to wit, that whereas, on the 4th day of March, in the year of our Lord 1804, certain articles of agreement were made, and entered into, by the said Hugh Holmes and Joseph Sexton, and a certain discourse had and moved, of, and concerning a certain tract of land in the county of Frederick, wherein and whereby it was agreed between them, that the said Hugh Holmes, on his part, should sell and convey unto the said-Joseph Sexton, a certain tract of land, which he purchased of Jacob Hanner, containing 208 acres, in consideration of the sum of 300 dollars, to be paid unto the said Holmes in three annual instalments, with interest from the date ; and that the said Holmes was to make a special warranty, and not to be liable for any disputes with Joseph Baker, or any other person whose lines might interlock with said Sexton ; and said Holmes was to make a conveyance when called upon ; in which case, the said Sexton was to give security on the land, or personal security, if said Sexton chose. And further, said Sexton, on his part, was to execute three several bonds, of 100 dollars each, payable as aforesaid, and was to have immediate possession ; which said articles of agreement are now in possession of said plaintiff, and to the Court now here shown. And the said plaintiff, in consideration of said agreement, and, also, in consideration that the said defendant had undertaken, and faithfully promised to perform every thing in said agreement on his part to be performed, promised and undertook to perform every thing on his part to be performed. And the said plaintiff avers, that he hath faithfully performed all that was required of him, on his part, *as far as he was suffered by the said defendant to perform, and that he was bound to perform : but the said defendant, his said agreement and undertaking has not kept and performed, but the agreement hath broken in this, that he hath not paid the 300 dollars by instalments, or at any time, or in any manner whatever, or any part thereof, with interest, as he was bound to do ; neither has he given his bonds for 100 dollars each, nor offered to do the same, nor has he given security, or offered to do so, although he has been often required to perform his contract aforesaid, but the same to do hath hitherto refused, and still doth refuse to do ; and so the aforesaid plaintiff saith, that the said defendant his agreement has not kept, but has broken the same ; to the damage of the plaintiff,” &c.
    Plea non assumpsit, to which the defendant afterwards added several other pleas.
    Verdict and judgment for the plaintiff for 300 dollars damages, with legal interest thereon from the 9th of March, 1804 ; from which judgment the defendant appealed to' this Court.
    
      
      Assumpsit — Declaration—Promise Must Be Alleged Positively. — It has always been, and still is a general rule in pleading, that whatever facts are necessary to constitute the cause of action should be directly and distinctly stated in the declaration and such facts should not be left to be inferred from other facts distinctly alleged In the declaration, and arguments, inferences and matter of law should be excluded. Thus, in Winston v. Francisco, 2 Wash. 187, it was held, that in an action of assumpsit, the promise must be directly averred, and not by way of inference, and that the omission of such direct averment was not cured after verdict by the statute of jeofails, as it then was, though it provided “that a verdict shall cure the omission of an averment of any matter, without proving which, the jury ought not to have given such verdict.” So in Sexton n. Holmes, 3 Munf. 566, the court set aside a judgment after verdict because no promise was sufficiently alleged in the declaration, though it did set forth that an article of agreement was made and entered into by the plaintiff and defendant, wherein and whereby the defendant, was to do certain things, the failure to do which things was alleged. So also, in Cooke v. Simms, 2 Call 39, a demurrer to a declaration in assumpsit was sustained which averred that the defendant made a certain note in these words, setting forth the note verbatim, and thus alleged a breach of promise contained in the note, but which promise was not alleged in any manner except that it appeared in the note set out verbatim. Burton v. Hansford, 10 W. Va. 474. To the same effect, the principal case is cited in Quarrier v. Peabody Ins. Co., 10 W. Va. 527.
      See further, monographic note on “Assumpsit” appended to Kennaird v. Jones, 9 Gratt. 183. The principal case is álso cited in Bank v. Clarke, 4 Leigh 609.
    
   Tuesday, February 9th, 1813,

JUDGE ROANE

pronounced the following opinion of the Court:

“The Court (not deciding upon any other point made, or occurring, in this cause) is of opinion that the judgment is erroneous in this, that there is no promise or assumpsit sufficiently averred in the declaration. The judgment is, therefore, reversed, with costs, and judgment entered for the appellant.”  