Harmon v. Armstrong

• Decision Date: 30 June 1838
• Citation: Harmon v. Armstrong, 5 Mo. 274 (Mo. 1838)
• Parties: ZEBULON HARMON v. JOHN ARMSTRONG.
• Court: Missouri Supreme Court

5 Mo. 274

ZEBULON HARMON

v.JOHN ARMSTRONG.

Supreme Court of Missouri.

June Term, 1838.

APPEAL FROM THE CIRCUIT COURT OF ST. CHARLES COUNTY.

COALTER, for Appellant. It is a general principle that the assignor of an instrument is not liable until after a failure to recover the amount from the maker. For aught that appeared on the trial, the assignee may have recovered from the maker of the instrument the whole amount estimated to be due on the lease at the time of the assignment, or it may be that he can still recover that amount if he will take the proper steps. This lease and assignment were both executed in the State of Kentucky, and the respective duties and liabilities of the assignor and assignee are to be determined by the laws of that State. This action was barred by the statute of limitations, see Rev. Code, 1835, p. 393, fixing the period of five years, &c. It cannot be said that, by Harmon's removal from the State of Kentucky, the running of the statute would have been prevented, for this is not affected simply by a removal, but it must appear such removal did in fact defeat the party of his remedy: Bobb v. Shipley, 1 Mo. R. 29; Cartmill v. Hopkins, 2 Mo. R. 220.W. M. CAMPBELL, for Appellee. Armstrong contends that Harmon is justly bound to pay him the amount of recovery in this case. 1. As assignor for the amount of debt assigned, which, owing to his admitted outstanding receipts, could not have been collected from said Powell by said Armstrong. 2. On the ground of improper concealment of facts and misrepresentation of the amount due at the time of the assignment. 3. That there being two outstanding receipts for $179 50 and $51 90, both admitted to have been executed by Harmon, his assignee, Armstrong was not bound to have prosecuted the suit against said Powell, in opposition to said receipts. 4. That if Harmon had, even by mistake, executed two receipts and one endorsement of credit for the same money, and then moved to Missouri, that Armstrong could know nothing of such mistake. 5. As to the entry of the judgment, Armstrong contends that the entry, “the judgment of the justice is affirmed,” does not vitiate the judgment, being a mere clerical error. 6. This being a summary trial in the Circuit Court, on an appeal from the justice's court, the same degree of accuracy is not required as in cases originating in the Circuit Court.

TOMPKINS, J.

Armstrong brought his action before a justice of the peaco against Harmon, and judgment being given there against Harmon, he appealed to the Circuit Court, where judgment being again given against him, he appeals to this court.

The suit was founded on an account, as follows:

Zebulon Harmon to John Armstrong,

Dr.

To amount of a deficiency found to exist in the amount of an article of agreement between Zebulon Harmon and A. O. Powell, which was assigned by said Harmon to John Armstrong on the 19th day of July, A. D., 1831, and which was not paid by said Powell to said Armstrong, because it had been previously paid to said Harmon himself by said Powell, as appears by said agreement and the receipt herewith filed,

$51 90

To interest on same up to this time,

31 24

Total

$83 14

On the trial of this cause, the plaintiff read in evidence the following paper, to-wit: a lease from said Harmon to A. O. Powell, and an endorsement of a credit, and an assignment made on it by Harmon, the defendant, to Armstrong, the plaintiff; the following is a copy:

“The article of agreement between Zebulon Harmon, of one part, and A. O. Powell, of the other, both of the town of Augusta, and county of Bracken, witnesseth: that the said Harmon agrees to rent unto the said Powell his houses and lot on Water street, &c., and the said Powell agrees to pay to the said Harmon for the rent of the aforesaid premises, the sum of one hundred and fifty dollars per year, for the term of two years,” &c.

The endorsement and assignment of this writing is in these words: “July, 19th, 1831. Cr. the within obligation with sundry payments up to this date, one hundred and seventy-nine dollars and fifty cents. (Signed) Zebulon Harmon.”

“For value received, I assign the balance of the within obligation to John Armstrong. Augusta,...