Howard v. Kimball

• Decision Date: 08 January 1876
• Parties: ALEX. H. HOWARD v. JULIA KIMBALL, executrix.
• Court: Maine Supreme Court

65 Me. 308

ALEX. H. HOWARD v. JULIA KIMBALL, executrix.

Supreme Judicial Court of Maine.

January 8, 1876

1874.

ON EXCEPTIONS AND MOTION, argued May term, 1871, and reargued May term, 1874.

ASSUMPSIT to recover the amount formerly due from Nathaniel Kimball the defendant's testator, to Rufus K. Page and by Page assigned to the plaintiff.

Prior to July, 1856, Page had extensive dealings with Kimball arising from owning shipping together, Kimball being the managing owner and keeping the accounts. In December, 1855 their accounts being unsettled, Page, to raise money for his business as a merchant, obtained notes from Kimball of some $15,000, and transferred to Kimball, by a bill of sale, absolute in form, one-half of the ship " Ocean Steed," which they had hitherto owned in common.

Page afterwards transferred the balance due him from Kimball, to the plaintiff Howard by an order in writing of the tenor following:

HALLOWELL, July 23, 1856.

Value received, pay to the order of A. H. Howard, cashier, any balance there may be in your hands on settlement of my account with you, and oblige your ob't serv't,

(Signed,) RUFUS K. PAGE.

To Capt. Nath'l Kimball, Boston, Mass. (Indorsed.) Pay A. H. Howard or order. A. H. Howard, cashier. Accepted, Nathaniel Kimball."

October 5, 1857, Page, having failed in business, assigned a scheduled list of his property and " any and all other demands, claims or property in which" the said Page had " any interest, whether herein specially named or not," to Charles Danforth and Calvin Spaulding, for the benefit of creditors.

In October, 1862, Kimball died, leaving his account with Page unsettled. This plaintiff failed to procure an adjustment with the defendant executrix, and uncertain what the nature of the dealings in the transfer of the " Ocean Steed" was, commenced two suits, one in equity against her, joining Page as a party defendant, and the other, this suit, at law against her alone.

The equity suit, in which the plaintiff claimed that the " Ocean Steed" was transferred to Kimball as collateral security and in trust, and prayed for an account, was dismissed with costs for the defendant.

The writ in this case, the suit at law, is dated July 23, 1863. It contained when made three counts.

The first count, on an account annexed, the last item in which is for the amount of the indebtedness of the defendant's testator to R. K. Page, transferred to the plaintiff, and which Kimball, the testator, agreed to account with the plaintiff for, is for $10,000.

The second count is for the price or value of one-half of the ship " Ocean Steed," alleged to have been sold by plaintiff to the testator, $10,000.

The third count is for $32,000, money alleged to have been had and received by the testator in his life-time, to wit, on the first of November, 1862.

Under this count is a specification of the claims relied on; the last of which is the amount of money which the said Nathaniel Kimball was owing one Rufus K. Page; the same having been transferred by the said Page to the plaintiff, and for which the said Nathaniel Kimball agreed to account to the plaintiff as creditor of the said Page.

At the August term, 1866, the plaintiff had leave to amend by adding the fourth and fifth counts.

The fourth count alleges that said Page, on the 23d of July, 1856, drew his order on said Kimball, requesting him to pay to the order of said Howard, " " cashier," any balance that might be in his (Kimball's) hands, on settlement of his (the said Kimball's) accounts with him, for value received; that the order was indorsed by Howard, cashier, to the plaintiff and accepted by Kimball; and that the balance due was $15,000.

The fifth count is similar to the fourth count, excepting it is described as an order made payable to the order of the plaintiff, and there is no allegation of its having been indorsed.

At the time when the amendment was allowed, exceptions were filed; and at the trial, March term, 1871, the defendant's counsel again objected to the third and fourth counts and to the introduction of the order under them, as introducing a new cause of action; but his objection was overruled.

The defendant pleaded the general issue; and also by brief statement the statute of limitations (afterwards waived); and also the suit in equity and the proceedings and judgment thereon.

The general issue was joined by the plaintiff, and by counter-brief statement he made answer to the defendant's brief statement.

At the trial the plaintiff offered in evidence the report of the auditor, which found a balance due from Kimball to Page as of July 3, 1856, $9776.79, made up the following items:

1. Accountable receipt of July 12, 1855, as per exhibit marked

(C.), $4290.00

Interest from March 8, 1855, 353.92

2. Proceeds of sale of one-sixteenth of ship " Lion" to Capt. Ryan,

August 10, 1855, 2484.69

Interest from August 10, 1855, 153.22

3. Three-sixteenths bark " Savannah," July 22, 1856, 1500.00

Interest, .25

4. Note given by Kimball to Page, given up by Page, and interest, 994.71

$9776.79

The report further found:

5. Seven-sixteenths primage on $656.25 is also allowed, and interest thereon, on Ryan's deposition, (exhibit D., now lost,) letter of Kimball to Howard, inclosing account, in which Kimball credits Howard therewith; also exhibits 7 and 8, and private account between Ryan and Kimball, in which this item is not

charged as paid over to Ryan. Interest on same, $235.46, 891.71

$10,668.50

The report, after tabulating the several items allowed and disallowed in the plaintiff's bill of particulars, closed as follows: " I herewith submit the paper evidence and exhibits and minutes of testimony taken before me, as part of my report. (Signed,) Samuel Titcomb, auditor."

The admission of the auditor's report was objected to by the defendant; but it was admitted by the court, except that portion which makes the accompanying document and evidence a part of the report.

The defendant's counsel objected to the document and evidence accompanying the report; and that objection having been sustained, he objected to the remainder--the report itself,--on the ground that it could not be received without the accompanying evidence, as that was attached to the report; and because the auditor had no power to report the evidence.

The plaintiff offered in evidence the order of July 23, 1856, signed by N. Kimball, which was objected to under the fourth count on the ground that it was not negotiable, but if it was negotiable, then Howard, as cashier of the bank, had no authority to indorse and negotiate it to himself in his private capacity without being authorized so to do by the bank. The court ruled for the purpose of the trial that the order was negotiable, and that Howard had authority to indorse and negotiate it, and admitted it, the word " cashier" being descriptio personæ .

The plaintiff objected to the deposition of Page on the ground that it was not competent by parol to explain or affect the order.

The plaintiff called H. K. Baker, one of the receivers of the American Bank, who testified that the books of the bank came into the hands of the receivers in the last of September, 1865. He produced the journal and ledger, and exhibited certain entries thereon of transactions with Page, and testified, subject to the defendant's objection, that no notes signed by R. K. Page had come into his hands dated anterior to July 23, 1856; and that he found no entry on the books of any other note than the one he had stated, given by said Page.

Calvin Spaulding, plaintiff's witness, testified that he was the president of the American Bank in 1856; was not familiar with the books; that A. H. Howard kept them; that they ought to show the indebtedness of parties to the bank; and further testified, subject to defendant's objection, that he was not aware of any indebtedness of any description from Page to the bank that had not been paid.

The defendant's counsel contended that the judgment in the bill in equity, Howard v. Kimball, aforesaid, was a bar to all of plaintiff's claims in this action, except the first and second items in the auditor's account. But if not so, then plaintiff was not entitled to recover, because the order of July 23, 1856, aforesaid, was not negotiable; that the order when first given was given to the American Bank, or to Howard as cashier, as security for Page's liabilities to the bank, and held by the bank for that purpose; that Howard, as such cashier, had no authority to indorse and to negotiate the order to himself; that, if the liabilities of Page to the bank were paid after the order was given, the bank no longer had any authority to hold it, or to negotiate it to Howard; that there was nothing due from Kimball to Page on the 23d of July, 1856; that when Kimball loaned Page the $15,000 in notes on which to raise money, it was specially agreed that they should be payment of and offset against the balance then due from Kimball to Page, at the time the notes were given, April 17, 1856, and that all the bank or Howard could take by the order would be the balance, if any, after allowing Kimball the $15,000 for his notes, and that, settling their accounts in that way, the balance was in Kimball's favor at the time the order was given.

He also contended that the auditor's report was only evidence for the consideration of the jury, to be considered the same as other evidence; that it was evidence only in regard to the items of account on which the auditor passed, as appeared by his report; that it was not evidence on the point of the agreement to...