Walker v. Bailey

• Decision Date: 26 April 1876
• Citation: 65 Me. 354
• Parties: EDMUND H. WALKER v. FRANCES O. BAILEY, administratrix.
• Court: Maine Supreme Court

65 Me. 354

EDMUND H. WALKER v. FRANCES O. BAILEY, administratrix.

Supreme Judicial Court of Maine.

April 26, 1876

1875.

ON MOTION.

ASSUMPSIT for money had and received. The plaintiff in 1868, and previously, was associated with Charles E. Bailey, the intestate, in purchasing and selling hay, Bailey assisting in the purchases in Maine, and the plaintiff either alone or as a member of the firm of himself and company, attending to the sales in Massachusetts, and sharing the profits with Bailey.

In 1868, one Kidder, of Norridgewock, received from Bailey $200 to aid him in finishing his haying, for which he gave to Bailey his note, and a mortgage on the 1867 crop of hay then pressed and lying in his barn for security. Of this $200 one-half was furnished either by the plaintiff individually or by the plaintiff & Co. A few days after this the plaintiff purchased the pressed hay of Kidder for some $280, advanced him another $100, and gave his note for the balance which he at first declined to pay on the ground of the outstanding note and mortgage to Bailey, but was afterwards compelled to pay on an execution obtained by Kidder against him. There was evidence tending to show that Walker settled with Bailey for his share of the Kidder hay, and for his $100 advanced Kidder, that on settlement Bailey declined to deliver to Walker the Kidder note, which he retained to offset with Kidder, against a charge for hay consigned to him, Bailey, at Richmond, and for which he, Bailey, had received nothing. After Bailey's decease, his administratrix delivered to Kidder, the $200 note in exchange for the Richmond hay. Whereupon the plaintiff brought this suit for the $100, by him advanced and for the $100 allowed the intestate in settlement for his advance to Kidder, for which $200 the intestate took Kidder's note and collected it. This suit the administratrix defended, on the ground that the action was not rightly brought, that if the plaintiff had any interest in the money loaned, it was that of a partner in the firm of E. H. Walker & Co., and, at any rate, the matter had been adjusted by Walker & Co., with the intestate as evidenced by their receipt in full to January 13, 1869. Upon the point of partnership, the evidence was conflicting, the plaintiff's brother, John S. Walker, testifying that he himself was formerly a partner of the plaintiff, but withdrew in 1865, long before these transactions, leaving his brother to carry on the business alone; while one Wise, formerly clerk of the firm of Walker & Co., deposed that E. H. Walker continued a partner till March 1, 1869, when he withdrew, and the deponent took his place in the firm.

The presiding justice instructed the jury in conclusion as follows: " In the first place, was any of the money advanced by this plaintiff? If it was by the plaintiff, then you are to consider whether this money so advanced by him on joint account went into and became a part of the Kidder note. If it did, has it ever been accounted for? If it did not, there is an end of the case; it is for you to determine."

After the jury had returned into court with their verdict, and before it was affirmed by the clerk, the presiding justice inquired of the foreman the grounds upon which they found for the defendant. The foreman replied, " we find for the defendant upon the ground that there was a firm existing at that time."

The defendant objected to the above answer of the jury being made part of the report.

The plaintiff moved that the verdict be set aside as against law and evidence.

J. Baker, for the plaintiff.

W. P. Whitehouse, and with him E. F. Pillsbury, for the defendant.

BARROWS J.

Two grounds were taken in defense at the trial: I. That if the plaintiff had any interest in the money loaned to Kidder, it was only that of a partner in the firm of E. H. Walker & Co., and so the suit in his individual name was not maintainable: II. That, at all events, the matter had entered into the adjustment between E. H. Walker & Co. and the defendants' intestate, made January 13, 1869.

The jury were duly instructed that if there was a partnership and the funds were advanced by the firm, the action was not maintainable. Their attention was carefully called to the evidence, tending to show that the money was advanced by the plaintiff alone; and they were further directed, if they found that it was so advanced, to inquire whether it had ever been accounted for. The report states that " after the jury had returned into court with their verdict, and before it was affirmed by the clerk, the court inquired of the foreman, the grounds upon which the...