Henderson v. Moore, 9 U.S. (5 Cranch) 11 (1809)

HENDERSON ®. MOORE.

The refusal of the court below to grant a new trial is not error.

Upon the plea of payment to an action of debt upon a bond conditioned to pay 500 dollars, evidence may be received of the payment of a smaller sum with an acknowledgment by the plaintiff that it was in full of all demands; and from such evidence, if uncontradicted, the jury may and ought to infer payment of the whole.

ERROR to the Circuit Court of the District of Columbia.

On the plea of payment to an action of debt upon a bond, for 500 dollars, dated in 1781, the defendant offered evidence to prove that in the year 1797 the plaintiff acknowledged that he had received of the money of the defendant to the amount of about 1,000 dollars, of one Wil¬ loughby Tibbs, out of the amount of a decree which the defendant had obtained against him for 3,000 dollars, and that the money which he so received was in full of all his claims against the defendant, the plaintiff having paid for the defendant several sums of money. There was no settlement made, nor any receipt given. “Whereupon the plaintiff prayed the court to instruct the jury, that if from the evidence they should be satisfied that the bond had not been fully paid off, no declaration of the plaint¬ iff’s ‘ that his claims against the defendant were all satisfied ’ would be a bar to his recovery in 1 2] this action ; which instruction tlie court oo

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refused to give as prayed, but directed the jury that if they should be satisfied by the evidence that the defendant, in the year of 1797, paid the plaintiff a sum of money less than the amount mentioned in the condition of the bond, which the plaintiff at that time acknowledged to be in full satisfaction of all his claims against the defendant, such payment and such acknowl¬ edgment are competent evidence upon the plea of payment, and that the jury may and ought to presume therefrom that the whole sum men¬ tioned in the condition of the said bond has been paid to the plaintiff,' unless such presump¬ tion be repelled by other evidence in the cause; to which refusal and instruction the plaintiff excepted.”

The verdict being for the defendant, the plaint¬ iff’s counsel moved the court for a new trial, and grounded his motion upon sundry affidavits tending to prove that the whole amount of the bond remained due to the plaintiff, and that he was surprised by unexpected testimony at the trial. But the court refused to grant a new trial.

Two errors were assigned.

1. That the court below refused a new trial.

struction to the jury as prajTd by the plaintiff ; and ought not to have given the direction which they did.

Marshall, C/l J., said that this court had decided at the last term, that a refusal by the court below to grant a new trial was not error.

The case being submitted upon the other point, without argument,

Marshall, Ch. J., delivered the opinion of the court,

That there was no error in the opinion of the court below. A part of the money due on the bond "might have been paid before; and

such an acknowledgment, upon receipt of a sum smaller than the amount of the condition of the bond, was good evidence upon the plea of pay¬ ment.

Judgment affirmed with costs.

Cited— 9 Wheat. 578 ; 1 Pet. 169 ; 5 How. 191 ; 1 Wall. 598; 3 Id. 105 ; 7 Wall. 502 ; 13 Wall. 001 ; 3 Otto 301 ; 2 Wood. & M. 3.

COOKE and Others v. WOODROW.

In an action of trover, if the judgment below be in favor of the original defendant, the value of the matter in dispute upon the writ of error in the Supreme Court of the United States, is the sum claimed as damages in the declaration. Due dili¬ gence must be used to obtain the testimony of the subscribing witness.

I f inquiry be made at the place where the witness was last heard of, and he cannot be found, evi¬ dence of his handwriting may be admitted.

ERROR to the Circuit Court of the District of Columbia, in an action of trover brought by the plaintiffs in error for sundry household goods.

A bill of exceptions stated that the plaintiffs on the trial produced in evidence to support their title to the goods, a certain paper writing signed by one John Withers, to which one John Pierson had subscribed his name as a wit¬ ness, and offered parol evidence to prove that

Crancli 5.

1809

Cooke and Others v. Woodrow.

13

the subscribing witness “had upwards of a year ago left the District of Columbia, and that before he left the said district he declared that he should go to the northward, that is to say, to Philadelphia or New York, and said he had a wife in New York. That the said subscrib¬ ing witness went from the said district to Nor¬ folk, and that when he got there he declared that he should go on further to the south, but where was not known, and that he has not been heard of by the witness for the last jwelve months. It appeared that a subpoena had been issued in this case, .for the said subscribing wit¬ ness, directed to the marshal of the District of Columbia, but he could not be found in the said district by the said marshal. The plaintiff then offered to prove the handwriting of the subscribing witness and of the said John With¬ ers to the said writing, but the court refused to permit the plaintiffs to produce evidence of the handwriting of the said subscribing witness, .and refused to permit the plaintiffs to prove the handwriting of the said John Withers, other¬ wise than by the testimony of the said 14:*] ^subscribing witness; to which refusal the plaintiffs excepted.”

C. Simms, for the plaintiffs in error, suggest¬ ed that this court must be satisfied by evidence (other than the declaration) that the sum in de¬ mand exceeded 100 dollars, exclusive of costs; .and cited the rule made in the case of Course y. Stead’s Executors (ante, vol. 1. p. 17).

But Marshall, Gh. J. , said, that that rule applied only to cases where the property itself (and not damages) was the matter in dispute — such as actions of detinue, &c.

If the judgment below be for the plaintiff, that judgment ascertains the value of the mat-’ ter in dispute ; but' where the judgment below is rendered for the defendant, this court has not, by any rule or practice, fixed the mode of ■ascertaining that value.

The point arising upon the bill of exceptions was submitted without argument.

Marshall, Ch. J., after stating the case as it appeared in the bill of exceptions, observed,

That the court had some difficulty upon the point. The general rule of evidence is, that the best evidence must be produced which the nature of the case admits, and which is in the power of the party. In consequence of that rule, the testimony of the subscribing witness must be had if possible. But if it appear that the testimony of the subscribing witness cannot be had, the next best evidence is proof of his handwriting. In the present case it does not appear to the court that the testimony of the subscribing witness could not have been ob¬ tained if proper diligence had been used for that purpose. It does not appear that the wit¬ ness had ever left Norfolk. It is not stated that any inquiry concerning him had been made there. If such inquiry had been -made, and he could not be found, evidence of his handwriting might have been permitted. But

*as the case appears in the bill of excep¬ tions, the court below has not erred.

Judgment affirmed with costs.

Aff’g— 1 Oanch, 437.

Distinguished— 9 Wheat. 52S ; 3 Pet. 34, 35.

Cited— 4 Wall. 164; 16 Pet. 333; Crabb. 66.

Cranch 5.

MANDEVILLE and JAME8SON

v:

WILSON.

Amendments are within the discretion of the court below.

Q were, whetherthecourt ought to permitamend- ments after judgment upon demurrer.

In the statute of limitations, the exception in favor of merchants’ accounts applies as well to actions of assumpsit as to actions of account.

It extends to all accounts current which concern the trade of merchandise.

An account closed, by the* cessation of dealings between the parties, is not an account stated.

It is not necessary that any of the items should have been charged within the live years, nor that the declaration should aver the money to be due upon an open account between merchants.

ERROR to the Circuit Court of the District of Columbia, sitting at Alexandria, in an ac¬ tion of assumpsit brought by the defendant in error for goods sold and delivered, and for the hire of a slave. •

The defendants below pleaded non assump- serunt, and the statute of limitations.

To the latter plea the plaintiff replied, ‘ ‘ that the said money in the several promises and un¬ dertakings aforesaid above mentioned in the declaration, at the time of the making of the promises and undertakings aforesaid, became due and payable on an account current of trade and merchandise had between the said plaintiff and the said defendants as merchants, and wholly concerned the trade of merchandise, to- wit., at Alexandria aforesaid, in the county aforesaid, and this he is ready to verify.”

To which the defendants rejoined, “that in the month of January, 1799, the partnership of Maude ville and Jamesson was dissolved, and public notice given of such dissolution, of which the said plaintiff had a knowledge at the time, and that at the time of the said dissolu¬ tion- of the partnership aforesaid, all accounts between the said plaintiff and the said Mande- ville and Jamesson ceased, and since which time no accounts have existed, or been contin¬ ued, between the plaintiff and the said defend¬ ants, which the said defendants are ready to verify. ”

The plaintiff surrejoined, “that the goods, wares and merchandise in the said dec- [IO laration mentioned, were by the said plaintiff sold and delivered to the said defendants, and the said negro in the said declaration mentioned was hired by the plaintiff to the defendants be¬ fore the month of January, in the year 1799, the time when the said defendants in their said rejoinder state their said copartnership was dis¬ solved, and this the plaintiff is ready to verify.”

To this surrejoinder the defendants demurred, and assigned for cause of demurrer, that ‘ ‘ the surrejoinder is a departure in this, that it is no answer to the defendants’ rejoinder.”

Upon joinder in demurrer, the court below gave judgment for the plaintiff;.

A bill "of exceptions stated, that on the day on which the cause was called for trial, the court permitted the plaintiff to withdraw his general replication to the plea of the statute of limitations, and to file the above special repli¬ cation. And that after the court had given judgment upon the demurrer, it refused to per¬ mit" the defendants to withdraw their demur-

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16

Supreme Court of the United States.

1809-

rer, and tlaeir rejoinder, and to file a general rejoinder to the plaintiff’s replication.

Youngs, for the plaintiffs in error.

been permitted to withdraw his general repli¬ cation, and to reply specially.

Livingston, J. Is that a proper subject for a writ of error?

Youngs. There are other points; but I sup¬ pose it is good ground for a writ of error. It creates delay; and although amendments may be matter of discretion with the court, yet the court is bound to exercise its discretion soundly and legally; it is a discretion which this court will control.

in favor of merchants’ accounts, applies only

to accounts ^current, where there have been mutual dealings, and where some of the items are more and some less than five years’ stand¬ ing. In such cases the last item shall draw all the rest out of the statute. But if all dealings between the parties have ceased for more than five years next before the commencement of the suit, the whole account is barred. An account which has ceased to run is an account closed. An account closed is an account stated ; and it is expressly decided that an account stated is not excepted from the general operation of the statute. Besides, the exception of the statute is only in favor of actions of account, and not actions of assumpsit. (2 Yes. 400, Welford v. Lid- del; 4 Mod. 105, Ohievly v. Bond; 2 Saund. 124, Weber v. Tivitt.y

The replication is repugnant to the declara¬ tion; for money due for the hire of a negro cannot be “money due on an account current of trade and merchandise.”

The declaration ought to have stated the money to be due upon such an account.

the defendant to withdraw his demurrer and his rejoinder, and rejoin generally to the repli¬ cation

E. J. Lee, contra, having cited 3Wooddeson, 83, 85, as to the principal question, was stop¬ ped by the court, as to the error alleged in the permission given by the court below to the plaintiff to amend before trial, and the refusal to allow the defendants after judgment upon the demurrer to withdraw it and take issue on the fact.

Marshall, Gh. J. , observed that the permit¬ ting amendments is a matter of discretion. He did not mean to say that a court may in all cases

permit or ^refuse amendments without control. A case may occur where it would be error in a court, after having allowed one party to' amend, to refuse to suffer the other party to amend also before trial. But that is not this case. After the parties have gone to trial upon a set of pleadings, and the judgment has been pronounced, it may be doubted wheth¬ er the court can permit the demurrer to be with¬ drawn. It would not be right in all cases, after the party had taken issue upon the law, and it has been decided against him, to suffer him also

1.— But see Sergeant Williams’s note to that case in his edition ot SaUnder’s Reports. The statute of Virginia, so far as it relates to the questions in this case, is preciscdy like the British statute of 21 Jac. c. 16, s. 3.

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to take issue upon the fact. If it be permitted, it is a matter of great indulgence.

There is no ground for the objection taken to- the declarationm this case, that it ought to have averred that the money was due on an account concerning the trade of merchandise.

A declaration need not set forth the circum¬ stances which take the case out of the statute- of limitations.

Youngs cited 6 T. R. 691, Holt v. Sc liolefield,. to show that when general damages are given, if there be one bad count in the declaration, the- court will arrest, the judgment.

Marshall, Gh. J. But by the statute of jeo¬ fails in Virginia, under whose laws this case was tried, the judgment shall be rendered for the plaintiff, upon a general verdict, if there be one good count in the declaration.

On a subsequent day

Marshall, Gh. J., delivered the opinion of the court,

That the exception in the statute applied to- actions of assumpsit, as well as to actions of ac¬ count. That it extended to all accounts cur¬ rent which concern the trade of merchandise- between merchant and merchant. That an account closed by the cessation of dealings- between the parties is not an account *st-at- ed, and that it is not necessary that any of the items should come within the five years. That the replication was good, and not repugnant to- the declaration; and that the rejoinder was bad.

Judgment affirmed with costs.

Cited— 5 Cranch 358 ; 6 Pet. 167 ; 11 Wall. 676 ; 5. Mason, 534, 527 ; 5 Sawy. 593.