Robert Clark v. Robert Young

• Decision Date: 01 February 1803
• Citation: 5 U.S. 181,2 L.Ed. 74,1 Cranch 181
• Parties: ROBERT E. CLARK, plaintiff in error v. ROBERT YOUNG and Company, defendants in error
• Court: U.S. Supreme Court

5 U.S. 181

1 Cranch 181

2 L.Ed. 74

ROBERT E. CLARK, plaintiff in error v. ROBERT YOUNG and Company, defendants in error.

February Term, 1803

[Argument of Counsel from pages 182-189 intentionally omitted] Mr. Chief Justice MARSHALL delivered the opinion of the court.

This was a suit brought by the defendants in error against the plaintiff, in the circuit court of the district of Columbia sitting in the county of Alexandria; and the declaration contains two counts for goods, wares and merchandises sold and delivered, and one for money had and received to their use. The cause came on to be tried on the general issue, and a verdict was found for the plaintiffs below, on which the court rendered judgment.

At the trial of the cause it appeared that the suit was brought for a quantity of salt, sold and delivered by Robert Young & Co. to Clark; after which Clark indorsed to Robert Young & Co. a promissory note made by Mark Edgar to John Pickersgill & Co. which had been indorsed by them to the said Clark, and which was payable sixty days after date.

This note was protested for non-payment; after which a suit was brought thereon by Robert Young & Co. in the county court of Fairfax against Clark: and the declaration contained two counts, one on the indorsement, and the other for money had and received to the use of the plaintiffs. In this suit verdict and judgment were given for the defendant, Clark; the court of Fairfax being of opinion that a suit could not be maintained against the indorser of the note, until a judgment had been first obtained against the drawer, and his insolvency made to appear.

After the determination of that action, this suit was instituted on the original contract; and, at the trial, the counsel for the defendant moved the court to instruct the jury, that if, from the evidence given in the cause, they should be of opinion that the promissory note aforesaid was indorsed by the defendant to the plaintiffs, in consequence of the goods, wares and merchandises sold as aforesaid, although the said indorsement was not intended as an absolute payment for the said goods, wares and merchandises, or received as such by the plaintiffs, but merely as a conditional payment thereof, yet the receipt of the said note under such circumstances, and the institution of the aforesaid suit by the said plaintiffs against the said defendant, on his indorsement aforesaid, made the said note so far a payment to the said plaintiffs, for the said goods, wares and merchandises, as to preclude them from sustaining any action against the said defendant for the said goods, wares and merchandises, until they had taken such measures against the said Mark Edgar as were required by the laws of Virginia; and that the plaintiffs, having instituted the suit aforesaid upon the said note against the said defendant, and that having been decided against the said plaintiffs, they were barred from sustaining this action against the said defendant.

This instruction the court refused to give; but directed the jury, that if they were of opinion, from the evidence, that the salt was sold and delivered as alleged, and that the promissory note aforesaid was indorsed by the defendant to the plaintiffs in consequence of the salt sold as aforesaid; although the said indorsement was not intended as an absolute payment for the said salt or received as such by the plaintiffs, but merely as a conditional payment thereof; the same is a discharge to the defendant for the salt sold to him, unless it is proved that due diligence has been used to receive the money due on the note; but...