Crow v. Cunningham

• Decision Date: 30 April 1868
• Citation: 45 Tenn. 255
• Parties: P. A. Crow, v. J. C. Cunningham.
• Court: Tennessee Supreme Court

45 Tenn. 255

P. A. Crow,

v.J. C. Cunningham.

Supreme Court of Tennessee.

April Term, 1868.

FROM LAUDERDALE.

This is an appeal from a judgment before a Justice of the Peace, in favor of Crow to the Circuit Court, where there was a verdict and judgment in favor of the defendant, from which the plaintiff appealed. Judge WM. P. BOND, presiding.

WILLIAMSON & WILKERSON, for Plaintiff in Error.,

PINSON & MARLEY, for Defendant in Error.

MILLIGAN, J., delivered the opinion of the Court.

This is an action brought on a note before a Justice of the Peace, executed by Cunningham to Crow, for $425, on the first of December, 1866, and due at thirty days. The Justice gave judgment in favor of Crow, for $42??.80; from which Cunningham appealed to the Circuit Court of Lauderdale County.

In the Circuit Court, Cunningham gave notice that he would insist, by way of set-off, on the value of four bales of cotton delivered to the plaintiff on the -- day of Nov. ember, 1866, the receipt of which had been acknowledged in writing.

The cause was submitted to a jury, and, on the trial, the defendant, under the charge of the Court, obtained a verdict on his set-off, of $289.79, upon which judgment was rendered against the plaintiff; and from which he has appealed in error to this Court.

On the trial, it was proven that the note sued on was executed for a balance due the plaintiff on an account, and that, at the time of its execution, Crow gave to the defendant the following memorandum in writing:

“Mr. Cunningham claims to have lost four or five bales of cotton, by shipping it to W. E. Dickerson & Co.; and it is understood, that this note is not to release P. A. Crow from any responsibility as an interested party with W. E. Dickerson & Co.

+-------------------------------+
                ¦December 1, 1866. ¦P. A. Crow.”¦
                +-------------------------------+
                

The defendant also offered in evidence, the following receipt:

“Received of James C. Cunningham, four bales of cotton, per T. S. Taylor. November 4, 1865.

P. A. Crow & Co.”

It further appears, that W. E. Dickerson, under the firm name of “W. E. Dickerson & Co.,” was engaged in shipping cotton; and, that the plaintiff, Crow, had previously agreed to go into partnership with him in that business, on condition, his partners in a dry goods house, Shybrook & Roland, of St. Louis, consented thereto. They withheld their consent, and he never did become the partner of Dickerson in shipping cotton, who, it seems, conducted the business in the firm name of “Dickerson & Co.,” although, in fact, he alone constituted the firm.

The plaintiff, P. A. Crow, as a member of the firm of “P. A. Crow & Co.,” did business in the same building in which Dickerson kept his office; but the business of the two parties were separate and distinct from each other.

It also appears, that, in 1865, one E. Williams, hauled four bales of cotton for the defendant, Cunningham, which was delivered to the plaintiff, at his mercantile house, in which Dickerson, under the name of “Dickerson & Co.,” kept his office. This cotton does not appear to have been accounted for by the plaintiff, or any one else, to the defendant. The proof as to the plaintiff's individual or joint liability for the cotton is greatly confused, and involved in much uncertainty. But this question was left fairly to the...