Wade v. Emerson

• Decision Date: 31 October 1852
• Parties: WADE & OSBORNE, Appellants, v. EMERSON & GOLDSBERRY, Respondents.
• Court: Missouri Supreme Court

17 Mo. 267

WADE & OSBORNE, Appellants,

v.EMERSON & GOLDSBERRY, Respondents.

Supreme Court of Missouri.

October Term, 1852.

1. A receipt in full from the plaintiff, after suit brought, is a good defense by way of plea puis darrein continuance.

Appeal from St. Louis Circuit Court.

Todd & Krum, for appellants. The note to Wade & Osborne, accompanied by the writing underneath it, is not an accord and satisfaction of the debt demanded in this suit. 1. Because it is executory. 19 Wend. 408. 4 Denio, 414. 2. Because, to be such, it should be full, perfect and complete. 5 N. H. 136. The note, with its subscribed writing, is not a payment. The note of a debtor, for his debt, is not a payment. 8 Cow. 77. Nor is the note of a third person ever presumed to be so. 1 Cow. 290, 306. To make it such, it must be proved that it was agreed to be taken in payment, and was so taken. 1 Cow. Rep. 306. The note and writing together are totally repugnant, and are guilty of a felo de se. The proof does not sustain the defense set up in the answer. There is no proof of any agreement to dismiss this suit, nor is such the effect of the agreement.

T. B. Hudson, for respondents. The agreement set up is a bar to the plaintiffs' action. Although inartificially drawn, it is manifest that the parties intended: 1, that the suits mentioned should be dismissed and the attachments released; 2, to close up and adjust the open accounts between the parties named; and 3, to provide for the payment of the note out of a particular fund there designated. It is a good plea in bar that plaintiffs, pending the suit, accepted a writing as an accord and satisfaction with the condition to dismiss the suit. 1 Stewart's Rep. 184.

SCOTT, Judge, delivered the opinion of the court.

This was an action in the nature of assumpsit, for goods, wares and merchandise, instituted by the appellants against the respondents in the Court of Common Pleas in St. Louis county. The process was an attachment which was served on the steamboat Excelsior, and upon property in the hands of a garnishee. The defendants appeared by attorney and answered the petition; judgment was rendered for the respondents on the following agreed state of facts: “It is agreed, that the facts are these; that the plaintiffs are and were copartners, as stated in their petition; that the accounts sued on were furnished as stated in the petition, and at the prices therein stated. It is admitted that the agreement signed by the parties, a true copy of which is herewith filed, had reference to the case above mentioned, and the case of the same plaintiffs against J. B. Goldsberry, and the accounts mentioned in the plaintiffs' petition, in each of said cases, and that the attachments referred to are the attachments in the cases above. It is admitted that James M. Emerson, one of the defendants, did, on his return to Dubuque, place in the hands of the person appointed to receive the assets of J. B. Goldsberry & Co., as stipulated in said agreement; that the indebtedness mentioned in said agreement, for which plaintiffs agree to give a receipt, includes the two accounts in the petition in the above cases mentioned. The agreement is as follows:

$2,584.85.

On demand, I promise to pay to Messrs. Wade & Osborne, or order, for value received, twenty-five hundred and eighty-four dollars and eighty-eight cents. St. Louis, August 15th, 1851.

Signed,

JAMES M. EMERSON.”

“The note above written, dated August 15th, 1851, payable on demand, for twenty-five hundred and eighty-four dollars and eighty-eight cents, which I have this day given to Wade...