Welch v. Lindo

• Decision Date: 02 March 1812
• Citation: 3 L.Ed. 301,11 U.S. 159,7 Cranch 159
• Parties: WELCH v. LINDO
• Court: U.S. Supreme Court

11 U.S. 159

7 Cranch 159

3 L.Ed. 301

WELCHv.LINDO.

March 2, 1812

Present.All the Judges.

ERROR to the Circuit Court for the District of Columbia, sitting at Alexandria.

Welch brought an action of assumpsit against Lindo, upon his indorsement of a promisory note.The declaration contained two counts.The 1st count stated, that one John Kercheval, on the 25th of August, 1796, made and delivered a promisory note to Lindo, payable to his order on demand, for 246 dollars, for valued received.That Lindo, on the 24th of January, 1800, indorsed it to Welch (the Plaintiff,) in these words, viz: 'Pay the within to James Welch, or order, without any 'recourse whatever on—A. Lindo.'That on the 30th of April, 1800, Welch assigned the note to a certain William Hodgsett, by writing on the back thereof, the following words, viz: 'I assign the within to William Hodgsett,' and signed his name thereto, and delivered it to Hodgsett.That Kercheval failed to pay the money to Hodgsett on demand, whereupon, Hodgsett, as assignee of the note, brought suit against Kercheval, the maker thereof, in the Circuit Court of Woodford County, in the State of Kentucky; in which suit Kercheval, pleaded that he had paid the debt to Lindo; upon which plea, issue was joined, and the jury found a general verdict thereupon, for the Defendant, Kercheval, upon which the Court rendered a judgment, which still remoins in full force; by reason of which premises the (Plaintiff, Welch,) became liable to pay to Hodgsett the 246 dollars, with interest, from the time the suit was brought, (viz: the 11th of June, 1803,) until the 2d of November, 1804, the time when he paid the same to Hodgsett, and the costs of that suit, amounting to 11 dollars and 72 cents, and did pay the same; of all which premises, the Defendant had notice, and by reason whereof, he became liable to pay the said 246 dollars, with interest on the same, and the said 11 dollars and 72 cents, being the costs as aforesaid; and being so liable, the Defendant, in consideration thereof, afterwards, &c. undertook, &c. to pay the same sum to the Plaintiff, &c.

The 2d Count was for money had and received to the Plaintiff use.

Upon the issue of non assumpsit, there was a verdict in the Court below, for the Plaintiff, on the first count, and for the Defendant, on the second count, but the judgment on the first count was arrested, and judgment was entered for the Defendant.

Upon the trial, the Plaintiff took a bill of exceptions, which stated, that he offered in evidence, a duly authenticated copy of the record of the Circuit Court of Woodford county, in the suit of Hodgsett against Kercheval, which was inserted in the bill of exceptions; and produced the original promisory note, with its indorsements, and proved the hand writing of the Defendant, Lindo, to his indorsement, and offered no other evidence; whereupon the Defendant's counsel, prayed the Court to instruct the jury, that the evidence so offered and produced, is not of itself competent to enable the Plaintiff to retain his action; and the Court decided, that it was not competent to enable the Plaintiff to recover upon the second count, but the judges were divided in opinion, whether the same was competent to support the first count; and therefore refused to give the instruction as prayed.To the opinion, that the evidence was not competent to support the action upon the count for money had and received, the Plaintiff excepted.

The motion in arrest of judgment, was grounded upon the general insufficiency of the first count.

E. I. LEE, for Plaintiff in Error.

1st.There was sufficient evidence prima facie, to support the count, for money had and received.

The indorsement of the note, was evidence of money had and received, and the record shewed, that the consideration for which it was received had failed: And where a man pays money upon a consideration which fails, he may recover it back by the action for money had and received.—1. Esp. N.P. 3 & 4.—Doug. 696.Chitty 190, 123, 124, 125.—3.Cranch, 318.—2.Burr, 1226.—1.Johnson, 590, Green v. Hart.—2.Johnson, 52.Russel v. Ball.—2.Burr, 1005, 1008, 1010, 1011.

2.The first count shews a good cause of action.It was not necessary to aver fraud;—but if it was, the want of such an averment is cured by the verdict; for a verdict helps every thing which is necessary to be proved upon the trial, and without proof of which, no verdict ought to have been given for the Plaintiff.Carthew, 389.—10. Mod. 300.—2. Vin. ab. 396.(W.a.) and (W.b.)- SWAN & JONES, contra.

1.The evidence was insufficient even if it had been a common indorsement.—The note having been assigned by the Plaintiff, to Hodgsett, it did not appear but that the right of action was still in the latter—but Lindo, having...