Baird v. Walker

Headnote

A bond, executed upon the issuing of an attachment against a non-resident debtor, is not invalid because the proceedings show a joint debt owing by two persons, and the non-residence of only one of them.

If one of two joint debtors is a non-resident of the state, an attachment may be issued against him, alone.

Where goods are left with a mercantile firm, to sell on commission, and a demand is subsequently made, by the owner, upon a member of the firm,for the goods, or a settlement, which is not complied with, this is a sufficient demand, to authorize a suit.

Where goods are left with factors, for sale on commission, the owner has no cause of action, for the price or value of the goods, until a demand by him. And until such demand is made, the statute of limitations will not commence running.

This was an action of debt upon a bond executed by the defendants Walker, Crafts & Clarke, upon the issuing of an attachment in favor of Baird, the plaintiff, against Walker as a non-resident debtor. Plea nil debet, and the statute of limitations, as to the debt owing to the plaintiff by Walker. Replication taking issue upon the second plea. The cause was tried at the Hew-York circuit in October, 1849, before Justice Jones,, and a jury. The plaintiff proved that in the year 1838 he left with the firm of Walker & Co. at Chicago, a quantity of axes for sale on commission. Said firm was composed of the defendant Charles Walker and one Eri B. Hurlburt. There was some proof as to the sale of the axes by Walker &.Co. or of some portion thereof, and of their value. It also appeared that remittances had been made to Baird by Walker <fc Co. from time to time, on account of the axes sold. And the plaintiff proved that in July, 1847, ho called upon Hurlburt, and stated that he had come to make a demand for his tools, or a settlement. Hurlburt said the business should have been settled before, but as soon as a difficulty they had, was arranged, it should be attended to. Ho property was given up, nor money paid, at that time. It appeared that the firm of Walker Co. was dissolved in December, 1839, and was succeeded by the firm of C. Walker & Co. which consisted of C. Walker, A. Walker and L. P.

Hilliard. A part of the axes were sold by the original firm, and a part by their successors in business.

The plaintiff having rested, the defendants’ counsel moved for a nonsuit on the following grounds: 1. That the bond was invalid, because the proceedings stated in the declaration showed a joint debt of two persons, and the non-residence of only one of them; and that an attachment could not legally issue for non-residence, unless both debtors were non-residents. 2. That the bond was invalid because the attachment was issued against Walker alone, for the alledged joint debt of Walker and Hurlburt. 3. That the bond was invalid because it did not follow the attachment, nor correspond with the proceedings stated in the declaration, the attachment being for a debt of a firm, and the bond being for the several debt of Walker alone. 4. That the debt was barred by the statute of limitations, and the issue upon that plea was not sustained by the plaintiff. 5. That the plaintiff had not proved a sufficient demand to enable him to sustain the action. 6. That the plaintiff had not proved any such debt of Walker <fc Hurlburt, or Walker alone, as he had alledged in his declaration; neither of the counts in the deela-ration, for goods sold, money lent, money had and received, account stated, dec. being sustained by the evidence. The judge refused the motion for a nonsuit; to which decision the defendants’ counsel excepted. The judge further decided and declared, and charged the jury, that the action "being against Walker <fc Co. by whom the axes were received and the receipt given therefor, and not against the subsequent firm of C. Walker «fe Co. composed in part of different members, to whose possession the residue thereof unsold by the prior firm afterwards came, as stated by the witnesses, the recovery of the plaintiff was to be limited to what the prior firm ivas chargeable with, and was recoverable in this action against them. That the receipt showed that the axes were placed in their hands by the plaintiff for sale by them on commission for him ; that part thereof was sold by them before the dissolution of the firm, which took place in December, 1839, and in July, 1847, the demand was made of Hurlburt, one of the members of that copartnership;

that from the time that elapsed between the re.ceipt of the axes in September, 1838, the dissolution of the firm in December, 1839, pi’ior to which time the sales must have been made, and the time of the demand in 1847, and what passed in the conversation between Hurlburt and the plaintiff at or about the time of the demand, the jury might presume and find that the money for the axes sold had been received; that under the circumstances of the case, the parties were chargeable at the prices for which the axes were to be sold, and that the same might be recovered upder the counts in the declaration; that the jury therefore, if they believed from the evidence, under the charge of the court as to the law, that any part of the axes had been sold and the money received therefor by the firm of Walker &• Co. would give their verdict for the plaintiff for the amount of what they should find to have been so sold, with the costs of the attachment as proved. To which decision and charge, and each proposition thereof, the defendants’ counsel excepted. The jury found a verdict for the plaintiff, and assessed his damages at $161,35.

The defendants moved for a new trial.