Snodgrass v. Broadwell

• Decision Date: 16 December 1822
• Citation: 12 Ky. 353
• Parties: Snodgrass v. Broadwell.
• Court: Kentucky Court of Appeals

12 Ky. 353

Snodgrass v. Broadwell.

Court of Appeals of Kentucky.

December 16, 1822

1. Under a count in indebitatus assumpsit, by a merchant for goods, wares and merchandizes, sold and delivered, orders drawn by the defendant on the plaintiff, in favor of other persons, may be given in evidence although there is no allusion in such orders, to their being paid in anything but money, and the jury may, from the whole state and circumstances of the case, presume that they were paid in goods. 2 and 3.

2. It is not necessary to support such count, that the goods, & c should have been sold at any certain price. 4.

3. Where the defendant in such action, introduces evidence conducing to prove, that the plaintiff was in partnership with another not named in the writ, the plaintiff may ask his clerks if they have any knowledge of such partnership. 5.

4. But should he ask them, " whether from the manner in which his books were kept, and his conversations with the supposed partner," they had any knowledge of the existence of such partnership, the question would be improper and ought not to be answered. 5.

5. There can be no recovery in an action of assumpsit, where, on the general issue, it is proved that there were partners, who have not joined in the action. 6.

6. It is immaterial, whether this proof comes out on the part of the plaintiff, or is introduced by the defendant; the rule is the same. 6.

This writ of error, is prosecuted to reverse a judgment recovered by Broadwell, in an action of assumpsit, brought by him in the circuit court against Snodgrass.

The declaration contains but one count, and that is an indebitatus count, for goods, wares and merchandise sold and delivered.

The trial was had on the general issue, and the questions presented for the determination of this court, grow out of bills of exceptions, taken to the opinion of the circuit court, in the progress of the trial.

It appears that after the plaintiff in the circuit court had introduced on the trial, his account of items, (several of which were for the payment of orders to divers persons,) and after he had established the same by proof, the defendant in that court, moved the court to instruct the jury, that upon the single count of indebitatus assumpsit, the plaintiff could not recover the sums charged to have been paid to orders. But the court overruled the motion, and instructed the jury, that if they should find from the evidence, the orders were discharged in goods, wares and merchandise, the plaintiff had a right to recover for them in this action; otherwise he had not.

2. In argument it was conceded that the plaintiff might recover for the payment of the orders alluded to in the present action if those orders contained a request for the plaintiff to pay merchandise, & c. for the defendant, and the merchandise & c were in fact so paid. But it was contended, that there can be no recovery under the general indebitatus count for goods, & c. sold and delivered, if the orders barely requested of the plaintiff to pay money, though they may have been discharged by the plaintiff in merchandise & c. And it was insisted, that by instructing the jury, that if they should find from the evidence, that the orders were discharged in goods, & c. the plaintiff had a right to recover, the court should be understood to have decided, that notwithstanding the orders were for money, the plaintiff might recover, if he had discharged them in goods, & c.

Under a count in indebitatus assumpsit, by a merchant for goods, wares, and merchandizes sold and delivered, orders drawn by the defendant on the plaintiff, in favor of other persons, may be given in evidence, although there is no allusion in such orders to their being paid in anything but money; and the jury may, from the whole state and circumstances of the case, presume that they were paid in goods.

Whatever may be the import of the orders, whether they contain a request to the plaintiff to pay either money or goods, we apprehend the decision of the court was correct. The objection taken in argument to the decision of the court might in ancient times, and before the general counts in assumpsit, were...