Bailey v. Wakeman

Headnote

V., a member of a New-York firm, being in the country purchased from the defen dant a sight draft on New-York which the defendant endorsed to the firm : and V. immediately sent it- to his partners in a letter, in which he directed them to credit it to himself individually. In a suit by the surviving partners of V., who bad died, in which the defendant claimed to set off the value of the draft,, held, that tlie letter was not competent evidence for the plaintiffs as part of the res gesta to shew that the purchase of the draft by V. was on his individual credit.

On error from the supreme court. B. & S. W. Wakeman sued Bailey in the supreme court for goods sold and delivered Non assumpsit was pleaded with notice of set-off, and the cause was referred to referees, who reported in favor-of the plaintiffs. On the trial before the referees it appeared that the plaintiffs and one Vaill were merchants in New-York, under the name of Wakeman & Vaill, prior to September, 1834, when Vaill died, and that the plaintiffs subsequently continued the business. In May, 1834, the defendant purchased of the then existing firm goods to the amount of $113,01. On the 10th of June following, Vaill, who also carried on business in the county of Genesee, met the defendant -at Batavia, and received from him a U. S. treasury warrant, payable at sight at the Manhattan Bank, New-York, for $960, which the defendant held as endorsee. The main question in the cause was, whether" Vaill purchased the warrant on his own account or for the firm of-which.be was a member. There was evidence tending to show that; Vaill gave the defendant a receipt for it signed with his individual name

but it was shown that the amount was to be applied in the first instance to pay the account of $113,01 for the goods which the defendant had shortly before purchased of the firm. After the death of Yaill and in October, 1834, the defendant was in New-York, and purchased of the plaintiffs goods to the amount of $1102,21. When this purchase was made the question had arisen as to who was responsible for the amount of the warrant, the plaintiffs insisting that Vaill had taken it on his own credit and had remitted it to them on his individual account, and the evidence tended to show that neither party yielded their pretensions and that the goods were purchased in the expectation that on the settlement of the account of Vaill with the firm, there might be a balance due his estate which would enable the plaintiffs to adjust the affair without loss to cither party, which, in that event, they undertook to do. It turned out, however, that Vaill instead of being a creditor was largely indebted to the firm. The defendant gave in evidence the conversation between himself and Vaill at the time the warrant was transferred to the latter, to show that he took it on account of his firm; but he refused to produce the receipt which Vaill then gave him, though it was proved that he had it, and had received notice to produce it. It appeared that Vaill immediately upon his receiving the warrant at Batavia and in the presence of the defendant, enclosed it in a letter written by himself to the plaintiffs in New York, which he sent by mail, but it was not shown that the defendant was aware of the contents of the letter. The warrant, which was given in evidence, was endorsed by the defendant to Wakeman & Vaill, or order, and had upon it their receipt for the amount given to the cashier of the Manhattan Company.

The plaintiffs’ counsel then offered in evidence the letter of Vaill which enclosed the warrant. The defendant’s counsel objected, but the referees decided to receive the evidence, and the defendant’s counsel excepted. In this letter, Vaill mentioned that the draft was enclosed, and requested the plaintiffs to pass it to his credit. The plaintiffs further proved, after a ike objection had been disposed of in the same manner, that

they immediately placed the amount to the credit of Yaill on the books of the firm, and that within a few days afterwards a larger amount was paid out by the firm on account of Yaill and charged to him. A general payment of $240 was proved to have been made by the defendant, and the report was for the balance of the plaintiffs’ account.

The defendant moved the supreme court to set aside the report, which motion was denied and judgment was rendered for the plaintiffs. The reasons appear in the report of the case in 2 Hill, 279 . The record in that court contains a statement of the facts which appeared on the motion before them in substance as above stated, which was inserted at the instance of the defendant.