Barry v. Law

• Decision Date: 01 January 1802
• Parties: BARRY et al. v. LAW. [1]
• Court: U.S. District Court — District of Columbia

89 F. 582

BARRY et al. v. LAW. ^[1]

United States Circuit Court, District of Columbia.

March Term, 1802

The case in evidence was that Bryan had contracted with Mr. Law to build stables and furnish materials; that Bryan purchased of the plaintiffs planks, etc., to the amount of $135.97. Bryan, at the foot of the plaintiffs' account rendered, drew an order on Mr. Law, in these words:

'Sir: Please to pay to R. & G. Barry the above account, being lumber used in building your stables, and charge your humble serv't. B. Bryan.

'To Tho. Law.'

This order was not on stamped paper.

The defendant on the 6th of December, 1800, made an entry in his books, as follows: 'Stables on Sq. 693, Dr. To am't of Capt. Barry's bill, $135.97, '-- and promised the plaintiffs that, if so much was due by him to Bryan, the bill should be paid.

THE COURT refused the order to go in evidence to the jury, because it was not stamped.

They also instructed the jury that the plaintiffs could not recover on the defendant's promise, unless he had signed a note in writing promising to pay, etc., that its being a conditional promise did not take it out of the statute of frauds, and that the entry in the defendant's books was not a sufficient note in writing to charge the defendant.

They refused to instruct the jury that, if at the time of promise the defendant was indebted to Bryan in a sum equal to the plaintiffs' claim, the evidence was applicable to the count for money had and received.

KILTY, C. J.

absent.

---------

Notes:

^[1] this case has been heretofore reported in 1 Cranch, C.C. 77, and is now published in this series, so as to include therein all circuit and district court cases elsewhere reported which have been inadvertently omitted from the Federal Cases.

---------