
    James K. Douglass vs. Allen Jones Davie.
    
    Except where an action is on an instrument which carries on its face the evidence of consideration, it must be averred in the declaration, and proved.
    ■the mére acknowledgment of a debt, without mentioning any particular amount, will net authorize a jury to give a verdict for a specific sum.
    But where the defendant in a note to the plaintiff) “calculated that four hales of cotton would pay the amount” due, accompanied with an (órder on his agent, to deliver to the plaintiff “the cotton he (defendant) had won at'the Camden main;” the court held that the jury might, upon such evidence give a verdict for the amount of four bales of cotton, or that parol evidence might have been given to show how much cotton the defendant had won at Camdesi, and a verdict for that amount would have been good.
    ASSUMPSIT — Tried before Mr. Justice Johnson, Fall Term, 1822.
    . The declaration contained three counts — one on an order, a copy of which is given below. One on an account stated for goods sold and delivered, and one for money had and received. The plaintiff produced in evidence, a , letter from the defendant to himself, in the following words — “ Mr. James K. Douglass, your favor by Miv 
      Lardy, was handed me a few days since, and according to your request, annexed you have an order for the cotton, which I supposed was delivered you long since, and I calculated that four bales would pay the amount. — - Please advise me when you receive it, and direct to Huntsville, Madison, M. T.
    Signed, A. J. Davie.
    At the bottom of this letter was the following order: J(3. Ji. Davie,
    
    You will have delivered to Mr. J. 33. Doug? lass, or order, my cotton, won on the Camden main.
    Signed, , A. J. Davie.
    There were other letters from the defendant, desiring the plaintiff to forward to him the amount of his account, &c. and acknowledging that he was indebted to him without mentioning any specified amount.
    The presiding judge was of opinion that the plaintiff could not recover on the first count, because there was no consideration averred in the declaration,, and that he could not recover on the other counts, because there was no specified sum acknowledged or proved to be due ; and also, that the order could not be given in evidence to support the other counts in the declaration.
    The plaintiff suffered a non-suit, and this was a motion to set that non-suit aside, on the ground that the evidence offered ought to have been submitted to the jury.
   Mr. Justice Nott

delivered the opinion of the court:

Every contract must be founded on a good or valuable consideration, and except when the action is on an instrument which carries on its face the evidence- of considera*tion, it must be averred in the declaration and proved. — . This order is not an instrument of that description. The plaintiff therefore could not recover on the first count. — - (Carlos vs. Fanconet, 5 D. & E. 482. Lansing vs. McKillip, 3 Caines, 286. Jerome vs. Whitney, 7 Johnson, 321. Gains vs. Hendrick, 2 Const. Rep. 339. )

I also concur with the presiding judge, that independent of the draft, and the letter accompanying it, there was no evidence to authorize a verdict for the plaintiff. The bare ¡acknowledgment of a debt, without mentioning any particular amount, will not authorize a jury to give a verdict for a specific sum. (Harrison, & c. vs. Wm. McKenney, 2 Bay, 412.) But I. think that the defendant’s letter to the plaintiff, stating that he “ calculated that four-bales would pay the amount, accompanied with an order to his brother to deliver to him his cotton . won on the Camden main, might he fairly construed into an acknowledgment that he owed the plaintiff the amount of four bales of cotton, whatever their value might he, and ought to have been submitted to the jury in support of the account, stated. And oten if that evidence had been insufficient, the deficiency might have been supplied by offering parol proof of the quantity of cotton won on the Camden main.

Clarke, for the motion.

Williams, contra,

The non-suit therefore ought not to have been granted, and the.motion to set it aside must prevail.

Justices Huger, Gantt, Richardson and Colcock, concurred.  