14 Minn. 127 (Minn. 1869), McCarthy v. Nash

Citation:14 Minn. 127
Opinion Judge:Berry, J.
Party Name:Jeremiah McCarthy v. Patrick Nash
Attorney:Brisbin & Palmer, for appellant Lampreys, for respondent
Judge Panel:Berry, J. McMillan, J.,
Court:Supreme Court of Minnesota
 
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Page 127

14 Minn. 127 (Minn. 1869)

Jeremiah McCarthy

v.

Patrick Nash

Supreme Court of Minnesota

1869

Page 128

Appeal from an order of the court of common pleas, Ramsey county, refusing a new trial.

The action was on an agreement between the parties, by which defendant agreed to pay the debts of the firm of "J. C. McCarthy & Co.," of which plaintiff was a member, and to indemnify and save plaintiff harmless therefrom. The breach alleged was in the failure to pay a debt of that firm due to a firm styled "Schwab, McQuaid & Smith," which plaintiff, after judgment against the former firm, paid. Plaintiff had a verdict.

The order denying a new trial is affirmed.

Brisbin & Palmer, for appellant, cited:

3 Cow. & Hill & Edw. Notes, 345; 4 Minn. 229, (Gil. 164;) 2 Cow. & Hill & Edw. Notes, 54, and note.

Lampreys, for respondent, cited:

1 Denio 69; 2 Hill 288; 21 Barb. 82; 13 Barb. 641; 2 Denio 139; 13 Minn. 55, (Gil. 50;) 2 Greenl. Ev. §§ 477-9; 3 Phil. Ev., Cow., Hill & Edw., Notes, (4th Am. Ed.) 435; 1 Caines 183; 16 Me. 261; 1 Greenl. Ev. 527, 538-9; 2 Greenl. Ev. § 116, and note; 10 Metc. 315; 5 Pick. 379; Browne, St. Frauds, § 117; Id. 337; 3 Gray 331; 2 Bouv. Law Dict. 276.

Berry, J. McMillan, J., having been absent from the bench owing to sickness in his family during the argument of the cause, took no part in the decision.

OPINION

Page 129

Berry, J.

To maintain this action it was sufficient for the plaintiff, under the issues made by the pleadings, to prove that the firm of J. C. McCarthy & Co. were liable to Schwab, McQuaid & Smith for the bill of goods alleged to have been purchased of the latter by the former, and that the plaintiff had been compelled to pay for and had paid for the same. There was testimony tending to show that there was a firm styled Schwab, McQuaid & Smith; that it was composed of Charles H. Schwab, Edward McQuaid, and John B. Smith, as alleged in the complaint, (if this be important;) that said firm sold the bill of goods aforesaid to J. C. McCarthy & Co.; that the goods ordered were all delivered; that a portion of them were delivered to and received by J. C. McCarthy & Co. before the plaintiff sold his interest to the defendant, and that the balance was delivered to Nash & Murphy, the successors of J. C. McCarthy & Co.; Nash being the defendant, and Murphy the former partner of the...

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