
    BOYD & AL. vs. HOWARD.
    East'n District
    Jan'y. 1825.
    The plaintiff may shew the value of goods sold, although he does not declare on a quantum valebant.
    Appeal from the court of the first district.
   Mathews, J.

delivered the opinion of the court. In this, case, as seen by the record, two trials have taken place in the court below, both before juries; and on each verdicts for the defendant. From the judgment rendered on the last verdict, the plaintiffs took the present appeal. In the course of that trial, they attempted to prove the value of flour per barrel, in support of their action; which was instituted to recover the price of a number of barrels of that article. The petition alleges it to have been sold for a sum stipulated and certain, in a contract of sale between the parties, and contains no count for a quantum valebant. On this ground the testimony offered by the plaintiffs was refused, their counsel not being permitted to interrogate the witness to that effect. A bill of exception to the opinion of the judge a quo on refusing this evidence, which was regularly taken, which embraces the only point necessary to be decided at this time, in the cause. It would certainly have been safer and more technical to have added such a count as that above stated; but we are of opinion that the want of it is not a sound objection to the admissibility of the testimony offered. In this respect the present case is not distinguished from that of Gilly vs. Henry, decided by this court. See 8 Martin 402.

Christy for the plaintiffs, Morse for the defendant.

It is therefore ordered, adjudged and decreed, that the verdict and judgment of the district court be set aside, reversed and annulled, and that the cause be sent back to said court to be tried de novo, with instructions to said court to admit legal evidence to prove the value of flour at the time of the alleged sale to the defendant. It is further ordered, that the appellee pay the costs of this appeal.  