
    (First Circuit—Hamilton Co., O., Ciruit Court
    Jan. Term, 1900.)
    Before Smith, Swing and Giffen, JJ.
    JOHN HOFFMAN v. WILLIAM H. DAVIS.
    
      To constitute an account there must be a debit against some person—
    
      A. H. Bode, for Plaintiff in Error.
    
      F. D. Goodhue and W. L. Dickson, contra,
   GIFFEN, J.

The proof in this case shows a contract of purchase for 10,000 pounds pork shoulders at five oents, delivery of part, a refusal to deliver the balance, a purchase in the market by the vendee at an advanced price, and damages for the difference.

The petition sets forth the sum of $220.30 as due upon an alleged account, and a copy thereof.

To constitute an account,there must be a debit against some person; but in this account there is no charge against the plaintiff in error or any other person, nor do the statements in the petition oonform to the proof. They are to the effect that shoulders were bought in October, 1892, and not delivered; that the contract price was five cents per pound, and that later they were replaced by purchase from one Sigmund Fritsch at ten oents per pound; but there is no averment that the plaintiff in error agreed to sell and deliver 10,000 pounds of shoulders or any other amount. The petition, therefore, does not contain facts sufficient to constitute a good cause of action, either on an account or a contract of purchase. The court erred in receiving testimony tending to prove such contract.

Judgment reversed and cause remanded.  