Sweeney v. Willing

• Decision Date: 30 November 1839
• Parties: SWEENEY v. WILLING.
• Court: Missouri Supreme Court

6 Mo. 174

SWEENEY

v.WILLING.

Supreme Court of Missouri.

November Term, 1839.

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY.

TOMPKINS, J.

The appellees, plaintiffs in the Circuit Court, sued Willing in assumpsit; the declaration contained three counts.

The first special and the two others general. In the first they state, that they made their bill of exchange directed to the defendant, and thereby requested him to pay to one Alexander Rogers or order the sum of seven hundred and eighty-eight dollars and sixty-nine cents; that the defendant accepted the bill but failed to pay, and it was returned to the plaintiffs. The second count is for goods, wines, &c., sold and delivered to the defendant to the same amount viz: $788 69. The third is the same amount of money due on an account stated. Judgment was given in the Circuit Court for the plaintiffs, and to reverse that judgment the defendant appealed to this court.

The bill of exceptions shows that Thomas Young, a witness in the cause, proved that he was in the service of the plaintiffs, and as their agent sold to the defendant certain articles, in the witness' deposition mentioned, and furnished the defendant with a bill of the same, that the plaintiffs drew the bill in the first count mentioned on the defendant for the amount of the goods sold him as before stated, the bill was endorsed by Rogers and sent on to St. Louis for collection through the Northwestern Bank of Virginia and was returned protested to the Northwestern Bank, and was paid by the plaintiffs; he further states that the endorsement made by Rogers, was for the accomodation of the plaintiffs and that he had no interest in the bill, and that plaintiffs at the time were bona fide holders of the bill. Rogers testified also that he never had any interest, and that he merely endorsed, &c., for the accommodation of the plaintiffs.

A witness produced on the part of the defendant, appellant here, states that he was paying teller in the agency of the Commercial Bank of Cincinnati established at St. Louis. That the bill of exchange had been put into the possession of the said agency for the purpose of collection, that the defendant called at the agency on the day the bill became due just before the doors were closed with a bundle of bank bills in his hand and observed to the witness that he came to take up the bill, not wishing it to be dishonored; that he took the bank bills and counted them over, separating such as were received in bank from such as were not, and put both parcels on the counter and that he made the figures 530 on the back of the bill of exchange shown him by the defendant's counsel, this was the amount of the money which was bankable, that he received none of it, it not being the custom in that agency to receive less than the whole amount in such cases, and...