Opinion
(Spring Riding, 1802.)
The plaintiff must state in his warrant the nature of his demand, so as to give notice to the defendant of what is intended to be proved against him. Hence, if the warrant demand a sum as due by account, the plaintiff cannot go for damages for breach of an agreement.
THIS action was commenced by a warrant issued by a justice of the peace. It stated the demand to be for an account. Davis' counsel now stated that the account had arisen thus: That a special agreement had been entered into between the parties, whereby it was agreed that defendant should repair and fit the wagon of the plaintiff for the road, the iron to be found by the plaintiff; that the plaintiff delivered to him iron accordingly, and paid him the price of the work to be done on the wagon; that the defendant did not complete what he had undertaken, but did part of it only, and used but part of the (173) iron; for the residue of which plaintiff had raised his account. He had also included in the account part of the sum paid being the overplus above what was answerable to the work done, also for deficiencies in the work.
The plaintiff must state in his warrant the nature of his demand, so as to give notice to the defendant of what is intended to be proved against him; and when that is stated he should not be allowed to vary from it. The cause of action now stated is not an account, but a complaint for nonperformance of a special agreement, sounding in damages. Admitting what is contended for on the part of the plaintiff, that a demand on a special agreement, where the sum to be recovered does not exceed £ 20, is within the jurisdiction of a justice, it will not avail the plaintiff, for that does not prove that when he sues on account he may claim for nonperformance of a special agreement.
The plaintiff was nonsuited.
NOTE. — See Hamilton v. Jervis, 19 N.C. 227. A single justice has not jurisdiction where damages are sought for the breach of an executory contract. S. v. Alexander, 11 N.C. 182; Tyer v. Harper, 12 N.C. 387; Fentress v. Worth, 13 N.C. 229; Adcock v. Fleming, 19 N.C. 470.