Fenton v. Perkins

• Decision Date: 31 December 1832
• Citation: 3 Mo. 144
• Parties: FENTON v. PERKINS.
• Court: Missouri Supreme Court

3 Mo. 144

FENTON

v.PERKINS.

Supreme Court of Missouri.

December Term, 1832.

ERROR TO THE CIRCUIT COURT OF BOONE COUNTY.

TOMPKINS, J.

This action was commonced by Fenton against Perkins before a justice of the peace. Judgment being given against Perkins, he appealed to the Circuit Court of Boone county, where judgment being given for Perkins, Fenton, for the second time, brings up the cause here to reverse the judgment of the Circuit Court. It was proved before the Circuit Court, that some time in February, 1830, the plaintiff and defendant traded with each other: Fenton gave Perkins a horse worth thirty or forty dollars for two notes, one made by Perkins himself to Fenton for five dollars, the other note (as the witness expressed it) on John McMickle for seventy-five dollars. The horse was delivered to Perkins, and he agreed to leave the notes with Dr. Bennet. Fenton, on application to Dr. Bennet, was offered two notes, one of which only he received, which was the note of Perkins; the other purported to be made by John Mickle. He refused to receive the last, alleging as a reason that he was entitled to have the note of John McMickle. To prove that the parties contracted for this particular note, the defendant gave in evidence that he had been seen by the plaintiff in error and others, to have some months before a note commonly called a Martin and McMickle note, several of which were said to be in circulation, purporting to be made by McMickle to one Martin, and which were thought to be of doubtful character; but it was not proved to be signed by John McMickle. Little other evidence was given. It was proved that the note when traded for was at Perkins' house, and was understood by Fenton to be already in existence, and there was no conversation about the time when it had become due, or whether then due, or when it would be due. This court, when the cause was up before, decided that Fenton was entitled to a note signed by John McMickle, unless it could be proved that this note was specially contracted for. Lest the former decision of the court should be misunderstood, it will be here observed that the court decided that Fenton was, under the circumstances of this particular case, entitled to a note signed by John McMickle, and that his handwriting should be intelligible, unless it could be proved that this particular note was understood to be the subject matter of the contract because it was considered that Perkins had no right to impose on Fenton the task of proving that Mickle was intended for McMickle. The abbreviations of a man's given name are so common, that, without any violence to the law of the land, the courts may take judicial notice of them; but can it be said of the family name? This name, it may be also observed, is abbreviated in the initial letters, whereas the usual abbreviations are in the final letters. The majority of the court is inclined to believe, that notwithstanding the small value of the horse, and the undisputed and well established...