John McLean

“ Whether the jury assessed the damages on account of the injury sustained by the plaintiffs, for the want of cement in the construction of locks, other than those numbered five and six, or on account of other items stated in the bill of particulars; it is impossible for this court to determine. If the jury failed to observe the instructions of the court, or found excessive damages, the only remedy for the defendants was by a motion for a new trial. ”

“ As the bill of particulars is filed before the trial, it is always in the power of the defendant to object to its want of precision, and the court will require it to be amended before the commencement of the trial. ”

“ But that the plaintiffs are not entitled to recover for wages paid to their workmen on account of a deficiency of cement after the said 20th day of January 1830, unless the jury shall be satisfied by the said evidence, that the said resolution of the board of directors, of the 20th of January 1830, was rescinded by the said board, and a new contract entered into thereafter by the defendants of furnish cement to the plaintiffs, and the subsequent failure on their part so to furnish it, and an agreement also to pay for the wages of the plaintiffs' workmen, while so waiting, and so forth. ”

“ What is this count? For money paid. How pretended to have been paid? Not on any legal liability, as surety or otherwise, but upon an express contract. What is the contract pretended? That the defendants had promised to furnish water lime, had failed so to do; and when the plaintiffs were suffering from the same, they promised, if they would not leave the work, would retain their hands, and pay them, they would refund the amount paid. A more special contract cannot be set out: a more specific claim for damages cannot be made. ”

“ There was no entry on the books of the corporation; no meeting of the directors, or vote by the board. It was the act of the president only, on which the plaintiffs below rested their claims; and of the engineers, on the authority of the president. ”

“ By a reference to the charter of the company under the Virginia law, the power given to the company to act, and the manner in which contracts binding on the company are to be made, will be seen. The agreements which are held to bind the company, in this case, do not conform to those provisions. ”

“ If the promise is express, it must be so stated; as when one pays to one in his own employ wages for the benefit of another, there must be an express contract stated and proved, or there is no consideration.
These are the very elementary principles in this action; and they would not have been repeated, but they have been brought into question by the adversary argument. The proper conclusions from them are-1. That you cannot recover under a general count, what is founded on a special agreement, without setting out that agreement ”

“ In this he has to set out a specific agreement, and the breach of it; both of which he must prove. This was clearly not done in this case.
2. Indebitatus assumpsit. It is in its nature an action of debt; and is substituted for it; because the defendant is not permitted in it, as he may in an action of debt, to wage his law. 4 Co. 91; 3 Wooddison 168. Its precise character is important; especially as one of the counsel for the defendants has thrown himself on this point, and suggested that it had been disregarded in the opening argument. It is, however, without difficulty. ”

“ And also the answer of Milo Winchel, to an interrogatory on the part of the plaintiffs.
'To the ninth interrogatory, this deponent answering, says: that the defendants delivered the cement very irregularly, in small quantities, which caused very great hindrance and loss of time, and expense to these plaintiffs, by keeping a very large force of mechanics, common labourers, and teams, lying idle and upon expense of wages and board, whilst waiting for cement ”