Swearingen v. Orne

• Decision Date: 31 July 1844
• Citation: 8 Mo. 707
• Parties: SWEARINGEN & BREDELL v. J. & B. ORNE.
• Court: Missouri Supreme Court

8 Mo. 707

SWEARINGEN & BREDELL

v.J. & B. ORNE.

Supreme Court of Missouri.

July Term, 1844.

APPEAL FROM THE ST. LOUIS COURT OF COMMON PLEAS.

GAMBLE, BATES and POLK, for Appellants.

J. B. KING, for Appellees.

NAPTON, J.

J. & B. Orne sued the appellants, in an action of assumpsit, upon a note for $933 32, and recovered judgment. The declaration contained a special count upon the note, in which it was averred, that the defendants, by one Samuel A. Coale, made their certain promissory note in writing, &c. The common money counts were added. The defendants pleaded--non-assumpsit, payment, accord and satisfaction, and the statute of Limitations. The note offered in evidence upon the trial, and proved to have been executed by the defendants, was signed, “Swearingen and Bredell, per Samuel A. Coale.”

The plaintiffs below, composed the firm of J. & B. Orne, and, in 1839, an agent of this house received of Swearingen, on the defendants, several notes, signed by John Riggin, and indorsed by T. J. Payne, which notes, when paid, were to be in full satisfaction of the note sued on, and others, with the collection of which he was intrusted. At the time this arrangement was made with Swearingen, the firm of Swearingen & Bredell had been dissolved, and Swearingen alone was intrusted with the business of settling the concern. Nothing was realized from the notes of Payne & Riggin.

The court instructed the jury, “that there was no evidence in support of defendant's pleas, of accord and satisfaction, and payment.” It seems, from the bill of exceptions, that in the argument addressed to the jury, the counsel for the defendants, notwithstanding the instruction of the court, contended, that the facts sustained the pleas of accord and satisfaction, and payment, or at least sustained the same defense upon the general issue: whereupon the court again instructed the jury, that “there is no evidence before the jury of the discharge of either of the defendants from the debt, evidenced by the note read to them.” The first instruction was excepted to, and after verdict for the plaintiffs, the defendants moved for a new trial, which was not granted.

It it insisted that the court erred--first, in permitting the note of Swearingen & Bredell to be given in evidence under the special count; and, second, that the instructions were improperly given.

The averment is, that the defendants ( i. e. E. Bredell & J. T. Swearingen), by one Samuel A. Coale, executed their certain promissory note, for, &c....