Samuelingram v. Ashmore

• Decision Date: 31 October 1849
• Citation: 12 Mo. 574
• Parties: SAMUELINGRAM, ADM'R, v. MARGARET ASHMORE.
• Court: Missouri Supreme Court

12 Mo. 574

SAMUELINGRAM, ADM'R,

v.MARGARET ASHMORE.

Supreme Court of Missouri.

October Term, 1849.

ERROR TO ST. LOUIS CIRCUIT COURT.

This was an action of assumpsit brought by Samuel Jackson in the St. Louis Circuit Court against the defendant in error, Margaret Ashmore. The declaration contains a special count, and all the common counts with a count stated. The basis of the action is predicated upon the sale and transfer of a bond or note transferred by the said Jackson to the said Ashmore, the property of the said Jackson, executed by one H. W. Carter and N. R. Sullivan, for the sum of one hundred and twenty-two dollars and thirty-one cents, and is in the following words:

“Six months after date we, or either of us, promise to pay Samuel Jackson, or order, one hundred and twenty-two dollars and thirty-one cents, with interest, at the rate of ten per cent. per annum from date until paid, without defalcation or discount, for value received, as witness our hands and seals this 29th Sept. 1842.”

H. W. CARTER, [SEAL.]

N. R. SULLIVAN, [SEAL.]

The motive of the said Ashmore in buying said note, was as follows: She, the said Ashmore, had purchased of the said H. W. Carter and one Mildred Carter, his mother, five acres of land, and not having the money to pay them, purchased said note, so that it might be the same as cash to H. W. Carter, he being the maker of said note. The said Ashmore then agreed with the said Jackson that if he would let her have said note for said purpose, she would in place of it execute her own note of hand with good security to him, said Jackson, on or before the last day of April, 1844, for the said sum of $122 31, drawing interest at the rate of ten per cent. per annum from the said 9th day of September, 1842, until paid, as soon thereafter as requested by Jackson, or pay to the said Jackson by the last day of April, 1844, the aforesaid sum of $122 31 with ten per cent. interest per annum from said 29th day of September, 1842, until paid. The said Jackson being desirous of accommodating the said Ashmore, let her have said note for said purpose, which note was taken and received by said Carter and his mother as payment for said land. After which, the said Ashmore adopted the latter part of the proposition of payment of said note, and paid to said Jackson a part of said note, in pursuance of her said contract, but failed and refused to pay the remainder of said note or bond. The said Jackson, some time after her refusal, commenced this action against her, and sued out an attachment to secure him, and attached the land purchased as aforesaid. In the declaration there is a special count upon the special facts of the contract, and the bond sold as aforesaid is described as a note instead of a bond, which it is. To the declaration the said Ashmore, by her counsel, demurred to the special count, but afterwards withdrew the demurrer, and filed non-assumpsit. The trial coming on, Jackson, by his counsel, by the instruction of the court to the jury, was compelled to take a non-suit, with leave to...