Spence v. Simis

The plaintiff brought this action for goods sold and delivered, and it is conceded, that on the answer, he may be bound to prove each item of his account, which consists of twenty-three items. If the appellant had stipulated, on the motion for reference, to withdraw his claim on a quantum meruit and rely solely on the allegation of a promise to pay, no proof of the items would have been necessary. The plaintiff may not be able to prove the promise, and then can prove the items of the account. The order of reference was, therefore, properly made.

Order affirmed, with ten dollars costs and disbursements.