Finney v. Allen

• Decision Date: 31 May 1842
• Court: Missouri Supreme Court
• Parties: FINNEY & FINNEY v. ALLEN.

7 Mo. 416

FINNEY & FINNEY

v.ALLEN.

Supreme Court of Missouri.

May Term, 1842.

APPEAL FROM THE ST. LOUIS CIRCUIT COURT.

POLK, for Appellant.

SPALDING, for Appellee.

NAPTON, J.

This was an action by petition in debt, brought by Allen against John & William Finney. The note sued on, was as follows: “$1,000. Twelve months from date, we promise to pay Michael & Frederick Collins one thousand dollars, payable in merchandise, at the store of Messrs. Finney, Lee & Co.

St. Louis, April 2, 1839.

J. &. W. FINNEY.

On which the following indorsements appeared: Pay to G. C. Allen or order.

MICHAEL & FREDERICK COLLINS.

April 10, 1839.

“Gent: Please let the bearer L. Davis, have the amount of the within for me.

G. C. ALLEN.”

The defendants pleaded, first nil debet; second, payment; third, set-off against plaintiff; and fourth, a set-off against M. & F. Collins, the assignors. Issue was taken on the first, second and third pleas, and two replications to the fourth plea; the first a traverse, upon which issue was taken, and the second alleging, that the note was assigned to the plaintiff before the payees became indebted to the defendants, rejoinder and issue to the country. On the trial the indorsements were proved, and that it was in the hand-writing of Frederick Collins, but made by consent of Michael. Presentment of the note to Finney, Lee & Co., was also proved, and their refusal to give merchandise. It was proved that the signature of J. & W. Finney, was in the hand-writing of William Finney, one of the firm of J. & W. Finney; that the firm consisted of John and William Finney, but that said firm had been dissolved prior to the date of the note. The plaintiff having closed his testimony, defendant asked the Court to instruct the jury, that unless they believed from the evidence, that John and William Finney, at the time of the execution of the note sued on, composed the firm of J. & W. Finney, they must find for the defendants, which instruction was refused. The defendant below, then offered, by way of offset, a note executed by Giles Griswold, Charles Collins and Mirom Leslie for $3,000, dated 26th November, 1836, and payable 1st November, 1838, to Michael and Frederick Collins or order, and indorsed by them on the 2nd April, 1839, to J. & W. Finney. On cross-examination of the defendants' witnesses, it appeared, that William Finney had been in the habit, at the time of making the note signed by J. & W. Finney, and before and since that time, of making notes in the name of J. & W. Finney, with the knowledge of John Finney, who acquiesced in it. In relation to the note sought to be used as a set-off, it was proved, that the Finneys gave for it, the note sued on, another note of the same amount, payable two years after date, in merchandise, and credited M. & F. Collins with the amount of $979 47, previously due to the Finneys by them; and, also credited them on the books...