Watt v. Kirby

• Decision Date: 31 December 1853
• Citation: 1853 WL 4832,5 Peck 200,15 Ill. 200
• Parties: DAVID B. WATTv.ELIAB B. KIRBY.
• Court: Illinois Supreme Court

15 Ill. 200
1853 WL 4832 (Ill.)
5 Peck (IL) 200

DAVID B. WATT
v.
ELIAB B. KIRBY.

Supreme Court of Illinois.

December Term, 1853.

THIS cause was heard at April term, 1853, of the Scott circuit court, WOODSON, judge, presiding.

M. MCCONNEL and N. M. KNAPP, for plaintiff in error.D. A. SMITH, for defendant in error.

TREAT, C. J.

This was an action of debt, brought by Kirby against D. B. Watt, surviving partner of D. Watt & Son. The declaration contained the common counts. The defendant pleaded nil debet; and that the cause of action did not accrue within five years. The court sustained a demurrer to the latter plea. It appeared in evidence that D. Watt run a flouring mill for some time on his own account, and that D. B. Watt was employed by him about the mill; that they afterwards formed a partnership under the style of D. Watt & Son, and run the mill on account of the firm; that Kirby was in the habit of buying wheat, and having it delivered at the mill; that it was the custom to give receipts for the wheat, and for the parties to settle thereby; that Palmer delivered a quantity of wheat at the mill for Kirby, but it did not appear whether any receipt was ever given for it. The proof left it very doubtful whether this wheat was delivered at the mill before or after the formation of the partnership; and whether it was included in any settlement made between Kirby and D. Watt or D. Watt & Son. The plaintiff claimed to recover the value of the wheat delivered by Palmer. The court instructed the jury, at the request of the plaintiff, “that if the wheat was originally

[15 Ill. 201]

contracted for with D. Watt, but was delivered to D. Watt & Son, and went to their use, then the defendant, as surviving partner, is bound to account to the plaintiff for the same; and unless he proves that it has been paid for, the plaintiff is entitled to recover. The court refused to instruct the jury, at the instance of the defendant, “that to enable the jury to find a verdict for the plaintiff, they must believe from the evidence that the wheat was sold and delivered by him to the firm of D. Watt & Son; and if the testimony in the case leaves the question equally doubtful, whether the wheat was sold and delivered to D. Watt before the partnership with his son, or to D. Watt & Son after the partnership, then they must find for the defendant.” The verdict and judgment were in favor of the plaintiff.

1. The demurrer was properly sustained to the plea of the statute of limitations. Before...