Wiggins v. Hammond

• Decision Date: 31 October 1821
• Citation: 1 Mo. 121
• Court: Missouri Supreme Court
• Parties: WIGGINS v. HAMMOND, IMPLEADED, &c.

1 Mo. 121

WIGGINS

v.HAMMOND, IMPLEADED, &c.

Supreme Court of Missouri.

October Term, 1821.

ERROR FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY.

JONES, J.

This was an action of assumpsit, brought by the plaintiff against the defendant, Hammond, and one Expedien Bouis, jointly, as co-partners i trade, for money lent. The writ being returned non est, as to the defendant, Bouis, Hammond put in the plea of non-assumpsit, on which issue was joined, and the cause submitted to the Court without a jury. The bill of exceptions filed in the case, states the following facts as having been given in evidence for the plaintiff:--That early in the spring of 1818, Hammond borrowed of the plaintiff $300, with which, he had said, he wanted to pay off the expenses of a boat load of groceries, then lylng at the wharf at St. Louis, promising at the same time, to return the money in a few days--that there was such a firm or co-partnership as Hammond & Bouis, and that Hammond, the defendant, was one of the firm--that the money was borrowed by Hammond, without mentioning whether for himself or the firm, and that Bouis was not present--that after the goods had been stored up at St. Louis, Hammond introduced Bouis to a witness, as his partner, and that soon after the groceries were opened for sale, the partnership was dissolved. It was further proved, that in the fall before, Bouis went to New Orleans “to buy groceries for the firm--that he got alarmed on account of the yellow fever, and left the place and the goods, and returned to St. Louis--that in the course of the next winter and spring, Hammond went down and brought up the groceries, which were marked in the name of Hammond & Bouis.”

The bill of exceptions then states, that the counsel for the defendant objected to the evidence, alleging that it did not prove a loan to the partnership, but only to Hammond, individually; and the Judge being of opinion. that although he was well satisfied the partnership existed at the time of the loan. and the money loaned might have been borrowed for, and applied to. the extinguishment of a partnership debt, yet, as the money appeared to be borrowed by Hammond himself, without stating anything about the firm, that he himself, and not the firm, was responsible; and therefore advised the plaintiff's attorney to accept of a nonsuit, which he refused to do, and excepted to the opinion of the Judge, who, thereupon, gave judgment for the defendant, to reverse which, this writ of error was brought.

Had...