Burnham v. Chandler

• Decision Date: 01 January 1855
• Citation: 15 Tex. 441
• Parties: JESSE BURNHAM v. F. W. CHANDLER.
• Court: Texas Supreme Court

15 Tex. 441

JESSE BURNHAM

v.F. W. CHANDLER.

Supreme Court of Texas.

1855.

Where the plaintiff sued as assignee of an account, by virtue of an assignment of a schedule of debts in which the amount sued for was stated as a single item, it was held that the plaintiff might show that the amount was a balance after credits claimed by defendant, in order to identify it with the account sued on.

The recording of instruments which are not required or affirmatively permitted by law to be recorded is not notice.

See this case for what is said about the manner of availing oneself of certain defenses.

Where a witness testified that he had been salesman and bookkeeper of the party for a certain time during the currency of the account; that he sold many of the articles charged during that time, and saw them delivered; that he believed the mercantile books of the party to have been kept correctly during said time; that he posted the books from the time he commenced until the party quit business, or had them posted under his supervision; that he knew nothing of the correctness of the charges in the daybook after he left; that the books produced in court are the books of the party referred to by witness, it was held that the books were sufficiently proved for the time witness was bookkeeper and salesman, but that for the subsequent time they were not sufficiently proved.

Appeal from Fayette.

W. G. Webb and J. T. Harcourt, for appellant.

Chandler, Hamilton, Anderson and Bird, for appellee.

LIPSCOMB, J.

This suit was brought by Chandler, on an open account, alleged to be due from Burnham to Ross, and assigned to Chandler, as trustee for the benefit of Rice & Nichols, to whom Ross was indebted. The deed of assignment is alleged to have been executed on or about the 13th day of August, 1852, and filed for record in the office of the clerk of the county court on the 14th of the same month. The suit was brought to recover seven hundred and thirty-four dollars and sixty cents; and in the deed of assignment, in schedule of the various debts assigned, is included Jesse Burnham, $734 60-100. The account attached to the petition is for a much larger amount, and plaintiff alleges in his amended petition that this account had been reduced by credits to the amount stated in the assignment. To this the defendant objects that it is not stated in the assignment to be the balance of Burnham's account, but an open account for so much, and contends that the debt sued for is not the one assigned.

The object of the assignment was clearly to set over that amount due on open account from Burnham to Ross, for the benefit of Rice & Nichols, the creditors of Ross; that object will not be defeated by a mistake or mere inadvertency in not calling it the balance of Burnham's account. We think the objection was not well taken.

There is an objection to the charge of the court to the jury, in the part of the charge as follows: “Determine from the evidence the amount that was due, if anything, from the defendant, at the time of the assignment to the plaintiff. Whatever may have transpired between the defendant and Ross after the assignment was made, is not to be considered by you to the prejudice of the plaintiff. The rendering an account, by Ross to Burnham, after the assignment was made, is no evidence of the state of account between them, to the prejudice of Ross' assignee.” It is supposed that this part of the charge had direct reference to the evidence offered by Burnham of an account rendered by Ross to Burnham, and made out by the clerk of Ross under his direction, in which the clerk swears that the account was corrected in the charges for money advanced, Ross declaring that Burnham had returned the money. This was done a month or six weeks after the date of the assignment.

This charge is objected to in this, that it gives effect to the assignment from its date, and not from the time that the party whose account had been assigned had notice of the...