Strawn v. Kersey , 22 Ga. 586 ( 1857 )

By the Court.

Lumpkin, J.

delivering the opinion.

It has been repeatedly held by this Court, that the proper construction of the Short Form Act of 1847, is, that if the cause of action comes under those Forms, it is sufficient to set it out in accordance with those Forms, and that all else may be supplied by proof. In a declaration at common law, the plaintiff would have to aver and prove performance of his contract, or allege, and show a legal excuse for his failure, before he would be entitled to recover. Not so here. It was proposed to be shown, that although the meetinghouse, the building of which constituted the consideration for the note sued on, was not completed by the 6th of April, the time stipulated, owing to the blowing up of the Saw-Mill, which was to supply the lumber, still it was finished and accepted, soon thereafter, which amounted to a waiver of the time when it was to have been completed. But this testimony, the Court rejected.

Counsel for the plaintiff, then offered to amend his complaint, so as to let in the evidence; and this was refused by the Court.

Under the construction put upon the Act of 1847, the amendment was unnecessary. But even at common law, or certainly under the Act of 1853, respecting|amendments, this privilege would have been allowed the plaintiff. And if his complaint was defective without it, it should not have been refused.

Judgment reversed