Wilbur v. Clark

• Citation: 22 Mo. 503
• Parties: WILBUR, Respondent, v. CLARK, et al., Appellants.
• Decision Date: 31 March 1856
• Court: Missouri Supreme Court

22 Mo. 503

WILBUR, Respondent,

v.CLARK, et al., Appellants.

Supreme Court of Missouri.

March Term, 1856.

1. A., a member of a firm composed of A., B. and C., sold out to B. and C.; and the latter, with D. and E. as securities for the performance of their obligation, assumed to pay the debts of the partnership, and in particular a note for $488 18, due from the partnership. B. and C. failed to pay said note, and A. having paid a judgment recovered thereon in the state of Iowa against himself and his co-partners, brought a suit against D. and E. for indemnification. Held, that the entire correspondence between the note set out in plaintiff's petition and that described in a transcript of the record and proceedings in the Iowa suit, would warrant the court in finding that the notes described were the same note.

2. Where a cause is tried by the court sitting as a jury, it is not erroneous to refuse instructions asked by either party to the suit.

Appeal from Franklin Circuit Court.

This was a suit instituted by Horatio N. Wilbur against Jacob Clark and Randolph W. Apperson, on the following obligation, to-wit: “I, Horatio N. Wilbur, of the city of Keokuk, county of Lee, and state of Iowa, have this day sold all my interest in the shoe and boot concern of Wilbur, Newman & Co., to John Cunningham and Lorenzo Newman, principals, and Jacob Clark and R. W. Apperson, securities, for the sum of $485 04, paid and to be paid in the following manner, viz.: $185 25 in hand, and $300 79, my part of the debts of the concern, as may be seen by reference to a note held against the firm by Manny & Weld for $488 18, dated September 29, 1848; and one note held by How, Claflin & Cook for $414 18, of the same date, each to run four months from date. It is agreed in this sale that the said purchasers and their said securities assume the payment of the above specified debts, and are hereby bound, with their heirs, executors and assigns, to release the said Wilbur from the aforesaid liabilities, by their (the said purchasers) paying the whole amount of said debts, &c. The said Wilbur this day gives up to the said purchasers all his interest in said concern; and the said purchasers, with their securities, are bound to fullfil their part of this obligation by their subscription of their names hereunto, this 10th day of November, 1848. [Signed] Lorenzo Newman, John C. Cunningham, Jacob Clark, R. W. Apperson.”

The breach of the agreement assigned by plaintiff was, that the note described above, for $488 18, due Manny & Weld, was not paid by d...