Harris v. Johnston

• Decision Date: 01 February 1806
• Citation: 2 L.Ed. 450,7 U.S. 311,3 Cranch 311
• Parties: HARRIS v. JOHNSTON
• Court: U.S. Supreme Court

7 U.S. 311

3 Cranch 311

2 L.Ed. 450

HARRIS v. JOHNSTON.

February Term, 1806

ERROR to the circuit court of the district of Columbia, sitting at Alexandria, in an action of assumpsit, for goods sold and delivered, and money had and received.

The defendant pleaded the general issue, and upon the trial took two bills of exceptions.

The first stated, that this action was commenced on the 10th of July, 1801, and that on the trial the plaintiff offered evidence of the sale and delivery of goods, to the amount of 2,149 dollars and 33 cents.

That the defendant offered in evidence a bill of parcels of the same goods, rendered by and in the handwriting of the plaintiff, Johnston, amounting to 644l. 16s. Virginia currency, containing a particular account of rum and sugar, beginning with these words: 'Mr. Theophilus Harris, bought of Dunlap & Johnston,' at the foot of which bill was the following receipt, signed by the plaintiff: 'Received, Messrs. Clingman and Magaw's note for the above sum, payable to the order of John Towers, or order, indorsed by John Towers and Theophilus Harris, payable the 2d April, 1798, when paid, received in full;' which bill was rendered to the defendant by the plaintiff, at the time of the sale and delivery.

The defendant further offered evidence to prove, that the note in that receipt mentioned, was delivered to the defendant with the blank indorsement of Towers, and by the defendant indorsed in blank to the plaintiff, at the time of the sale and delivery of the goods,

and by the plaintiff afterwards indorsed to one John Dunlap, who, on the 19th of April, 1798, brought suit thereon against the present defendant, Harris, in the court of Hustings, in the town of Alexandria, upon his indorsement, striking out the name of the plaintiff, Johnston, and filling up the defendant, Harris's, indorsement with a direct assignment from Harris to Dunlap. That upon that suit judgment was rendered, by the court of Hustings, for Dunlap against Harris, from which judgment he appealed to the Dumfries district court, where the judgment of the court of Hustings was reversed,^* and Dunlap appealed from the judgment of the district court, to the court of appeals, where the judgment of the district court was affirmed.

The defendant, on the trial of the present suit, also offered evidence to prove, that the said John Dunlap, on the 19th of April, 1798, also commenced suit against Towers, upon his indorsement of the same note, which suit is still pending in the court below. That the said John Dunlap is the same Dunlap whose name is mentioned at the head of the bill of parcels aforesaid, and who is still living.

Whereupon, the defendant prayed the court to instruct the jury, that upon proof of these circumstances, the plaintiff could not recover, in this action, for goods sold and delivered; and that, from the bill and receipt given as aforesaid, the transaction must be considered as a joint contract. Which instruction the court refused to give, as prayed, but directed the jury, that the bill of parcels, before mentioned, is evidence (but not conclusive) of a joint contract of sale for the rum and sugar; and that the plaintiff may explain the transaction by parol, or other evidence, to prove that he

was the sole owner of the sugar, and that the said Dunlap was the sole owner of the rum, and that the contract for the sale of the sugar was made with the plaintiff in his own right, and that the contract for the sale of the rum was made with him as agent for Dunlap. But if the plaintiff should produce no such explanatory evidence, he could not maintain the present action.

And the court further instructed the jury, that if they should be satisfied, that the contract of sale was made with the plaintiff alone, and that part of the goods was the sole property of the plaintiff, and that the residue was the sole property of Dunlap; and that the plaintiff had authority from Dunlap to sell such residue; then the plaintiff had a right to recover judgment in this action against the defendant, for the whole amount of the goods so sold and delivered; and that the other facts stated are not sufficient to bar the plaintiff.

The 2d bill of exceptions in the present cause, stated, that the plaintiff produced a witness, who proved, that the sale of the goods was made in the store of Dunlap, where the goods were deposited; that he never knew Dunlap to claim any title to the sugar, nor the plaintiff to the rum; and that, previous to the sale, Dunlap claimed the rum as his separate property, and the plaintiff claimed the sugar as his separate property; and that Dunlap requested the plaintiff to sell the rum with the plaintiff's sugar. Whereupon, the plaintiff prayed the court to instruct the jury, that the evidence so offered was not competent to contradict or explain the purport of the bill of parcels and receipt, or to show that the plaintiff sold part of the goods as his separate property, and the residue as agent of Dunlap; and that it did not amount to proof of such several property and agency, as could enable the plaintiff to recover, in this action, for the whole of the goods sold.

Which instruction the court refused to give; but instructed the jury, that the declarations of Dunlap, or of the plaintiff, or the request of either of them, cannot be given in evidence, unless the defendant was present, when such declaration or request was made.

A verdict being rendered for the plaintiff, the defendant moved the court for a new trial, which was refused, and the court ordered the clerk to deliver up to the defendant, the note of Clingman & Magaw, indorsed by Towers, which was referred to in the receipt, and which was filed in the suit of Dunlap v. the present...