
    Francis Walton et al., Plaintiffs in Error, v. William J. Stephenson et al. Defendants in Error.
    ERROR TO JEEEERSOK
    It is erroneous to sustain a general demurrer to a declaration having three counts, if a part of the counts are good, and one of them defective.
    The facts of this case are stated in the opinion of the court. The judgment complained of was rendered by Marshall, Judge, at the September term, 1852, of the Jefferson Circuit Court.
    R. F. Wingate, for plaintiffs.
    R. S. Nelson and D. Baugh, for defendant.
   Trumbull, J.

This was an action of assumpsit, containing three counts. The first attempts to charge the defendants for a lot of drags and medicines, sold by the plaintiffs to one Raymond, on the ground of a supposed liability incurred by a letter of introduction which the defendants gave said Raymond to the plaintiffs.

The second, is the common count for goods sold, alleging, in substance, that the plaintiffs on, &e., at the request of the defendants, sold and delivered to said Raymond drugs and medicines to the value of f>328.37, in consideration whereof the defendants on, &e., at, &c., promised to pay the plaintiffs said sum, and concluding with the usual breach.

The third, is also a common count, differing from the second, by alleging that in consideration that the plaintiffs, at the request of the defendants, would sell and deliver to one Raymond such drugs and medicines as he requested in his business, they, the defendants, undertook and promised to be accountable to the plaintiffs for such goods, &c., and then alleges a sale, &c., as in the second count.

The circuit court sustained a general demurrer to the whole declaration.

The first count is manifestly defective. The letter as therein set forth did not make the defendants liable in an action of assumpsit for the goods purchased by Raymond. If they can be held liable at all, it must be upon an entirely different state of case from that which is set forth in the first count. The second and third counts are, however, substantially good.

So far as appears from those counts, the defendants may have undertaken by a valid contract to pay for the goods purchased by Raymond, and if the declaration contained one good count, the demurrer was improperly sustained. It is probable that the attention of the circuit court was never called to any other than the first count.

Judgment reversed, and cause remanded.

Judgment reversed.  