Fulkerson v. Bollinger

• Decision Date: 31 January 1846
• Citation: 9 Mo. 838
• Court: Missouri Supreme Court
• Parties: J. D. FULKERSON, SURVIVING PARTNER, &C., v. AMOS BOLLINGER.

9 Mo. 838

J. D. FULKERSON, SURVIVING PARTNER, &C.,

v.AMOS BOLLINGER.

Supreme Court of Missouri.

January Term, 1846.

APPEAL FROM RIPLEY CIRCUIT COURT.

MCBRIDE, J.

Ellis & Fulkerson, partners, &c, sued David Lorens, Amos Bollinger, and Peyton R. Pitman, by petition in debt, in the Ripley Circuit Court, when a verdict and judgment being obtained against them, they have brought the case here by appeal. The action was founded on the following note:

“$1633 35-100--Cape Girardeau, August 22, 1838. One day after date we promise to pay to the order of Ellis & Fulkerson, sixteen hundred and thirty-three dollars 35-100, without defalcation, for value received, bearing interest at the rate of ten per cent. per annum.

D. LORENS, A. BOLLINGER, & P. R. PITMAN.”

Before the trial of the cause, Ellis, one of the plaintiffs, and Lorens, one of the defendant, departed this life, and the process not having been executed on Pitman, the action was discontinued as to him, and revived as to the survivors.

The record does not show the state of the pleadings. The bill of exceptions shows the evidence to have been substantially, as follows: The note as above set out, with a credit indorsed thereon for $110 91, paid the 8th February, 1840, and a negro boy valued at $800, received 20th March, 1840.

J. H. Chenoweth, a witness for the defendant, testified that in 1839, Ellis told him that he and Fulkerson had purchased of Lorens 100,000 feet of lumber at the mouth of White river, at $15 per thousand feet, and boasted of the bargain which they had obtained; and that they would charter a boat for the purpose of bringing it up, and went to St. Louis for that purpose, but could not obtain one for less than one thousand dollars, which he thought too much, and would not give that sum.

John Lorens testified that he was employed by Lorens & Bollinger, to run plank to the mouth of White river, for Ellis & Fulkerson, to the amount of 100 000 feet, or upwards, in the year 1839, and that he delivered it there in good order. He understood that it was to go in discharge of the debt which Lorens & Bollinger owed Ellis & Fulkerson, to-wit; $1633 35-100. Afterwards Ellis & Fulkerson refused to take the lumber, because it was damaged after lying there--that Lorens & Bollinger never had anything to do with the lumber afterwards. A receipt signed by N. W. Watkins, attorney for the plaintiffs, for eight hundred dollars, dated 16th June, 1841, which was proven to be in the hand-writing of said Watkins.

The plaintiff then read the deposition of James Cannon, who testified that about the first of Jauuary 1840, being empowered by Ellis & Fulkerson, he went to a point on the Mississippi river, known as Alexander's wood yard; that Alexander, as the agent of Lorens & Bollinger, showed him the lumber which was piled up on his premises, but that as it was damaged he refused to take possession of it, under his instructions from Ellis & Fulkerson; which fact he communicated to them on his return home. This being all the evidence, the cause was submitted to the jury, who found a verdict for the defendants. Whereupon the plaintiffs filed their motion to set the verdict aside, and for a new trial for the general reasons, which the court overruled, and the plaintiffs excepted. The Circuit Court was not asked to give any instruction to the jury, nor was any given. The only error complained of is the finding of the jury, and the refusal of the court to set aside the verdict and grant a new trial.

This court has heretofore decided that they will...