Boffandick v. Raleigh

• Decision Date: 24 November 1858
• Citation: 11 Ind. 111
• Parties: Boffandick v. Raleigh
• Court: Indiana Supreme Court

11 Ind. 111

Boffandick v. Raleigh

Supreme Court of Indiana

November 24, 1858

From the Vanderburgh Court of Common Pleas.

The judgment is affirmed, with 5 per cent. damages and costs.

J. G Jones, J. E. Blythe and J. J. Chandler, for appellant.

C Baker, for appellee.

OPINION

Davison, J.

Boffandick was the plaintiff, and Raleigh, the defendant.

The complaint contains two paragraphs. The first charges the defendant, as surviving partner of the firm of M. & W. Raleigh, for money loaned and for goods sold and delivered. The second alleges that the defendant, individually, was indebted to the plaintiff for goods and Indiana state stock money sold and delivered.

The answer contains six paragraphs--1. A general denial; 2. That on the 4th of December, 1854, the plaintiff and the firm of M. & W. Raleigh had a settlement of their accounts, &c., up to that date, upon which it was found that there was due from the plaintiff to said firm 137 dollars, and that the plaintiff on that day gave his promissory note to Walter Raleigh, one of the firm, for the above amount. The remaining paragraphs make no point in the case presented for our consideration.

There was a reply in denial of the second paragraph.

Verdict in favor of the plaintiff for 181 dollars. New trial refused and judgment. The plaintiff appeals to this Court. For error, it is assigned--1. That the Court in its charge misinstructed the jury; and 2. That the Court erred in refusing a new trial.

The evidence, so far as it relates to the case made by the complaint, tends to prove certain items of account against the defendant as surviving partner, amounting to 405 dollars, and against him for his separate debt, to 406 dollars--in the aggregate amounting to 411 dollars. And the plaintiff having rested, the defendant, in support of his second defense, produced Richard Raleigh, who testified as follows: "Boffandick told me [witness] that Maurice Raleigh was owing him. I wrote to Maurice, who resided in Philadelphia, about the indebtedness; but he paid no attention to my letters. Before I went to Philadelphia, which was in April, 1855, I requested Boffandick to furnish me his account, and told him I would insist on Maurice paying it. Boffandick made out and gave the account to me. He said the due-bill for 137 dollars, which I showed him, was all right. We were talking about the general account of M. & W. Raleigh with Boffandick. Upon my return from Philadelphia, I told Boffandick that Maurice Raleigh said he would settle with him as soon as he would convince him (Maurice) that Walter Raleigh had got the proceeds of a certain 975 dollars draft. Boffandick replied that Rathbone, cashier of the branch bank, would explain that. Boffandick told me, further, that he had settled with Walter for the draft; that that settlement had nothing to do with the present bill. He had settled for the draft outside of the claim now in suit. Walter Raleigh was in the habit of taking notes due the firm in his own name. Boffandick said the due-bill was all right. He said nothing about it being a firm transaction, but I believe it was. It was treated as such."

The due-bill referred to was then given in evidence. It reads thus:

"Due W. Raleigh one hundred and thirty-seven dollars, for value received. $ 137. Evansville, December 4, 1854. [Signed] J. H. Boffandick

The Court (the evidence being closed) gave the following instructions:

"1. This is an action upon an account, to which the defendant has set up several defenses, one of which was a settlement. If the jury believe that there was a settlement between plaintiff and M. & W. Raleigh, they will not take into consideration any item accruing to the parties prior to such settlement.

"2. A note or due-bill is prima facie evidence of a settlement between the parties; but it may be shown by other evidence that such was not given on...