Willoughby v. Raymond , 4 Conn. 130 ( 1821 )

Hosmer, Ch. J.

The evidence offered in this case was undoubtedly admissible. The writing recited in the plaintiff’s declaration was a perfect transcript of it; and the allegation that the defendant executed the writing, by his testimony proved to be authentic, was unquestionably supported.

The judge omitted to instruct the jury, that the above-mentioned writing, the only evidence adduced, did not support the promise laid in the plaintiff’s declaration; and in this particular, the proceeding below was manifestly erroneous. The promise averred was incorrect, for two reasons. In the first place, it was an assumpsit implied; and the express contract clearly excluded the implication. Expressum facit cessare tacitum. Secondly, the promise proved was essentially variant from the one alleged. The allegation was of a promise to pay a sum of money “in a reasonable time then to come”; and the proof was of an express engagement to pay the money on the 1st day of April, 1820.

The other Judges were of the same opinion.

New trial to be granted.