Holmes v. D'Camp — 1 Johns. 34

Majority

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J. and T. Holmes and Drake against D’Camp.

Headnote

Where one of several partners dies, and tlie survivors continue to trade under the copai tnership name, and an account is stated afterwards, by a debtor,between him and the copartnership, admitting a balance duo by him, for goods sold in tlie life time of tlie deceased partner ; tlie surviving partners may recover suchbalance, on an ineiinul computassent, with out stating the death of the other partner, and the survivorship. The stating of the accomit is in the nature of a new promise to tlie survivors. If a negotiable note o;* bill of exchange, be given for a simple contract debt, tlie party cannot recover on the original contract, unless he shows the note to he lost, or prod 1 ces and cancels it, at the trial)

THIS was an action of assumpsit, tried before Mr. justice Livingston, at the New-York sittings, the 27th day of September, 1804. The declaration contained the usual counts for goods sold and delivered, money had and received, &c. and an insimul computassent. The defendant pleaded non assumpsit, with a notice of the special matter intended to be given in evidence, under the general issue.

It appeared that the plaintiffs, and a person by the name of Charles Holmes, who died in May, 1801, were, for some time before, partners together in trade, under the firm of Charles Holmes and Co. that the defendant knew of the death of Charles Holmes, at, or about the time it happened ;, and that the plaintiffs afterwards continued their business, under the same firm. The plaintiffs produced an account current, stated by the defendant, between him and Charles Holmes and Co. in which a balance of five hundred and thirty-two dollars and ninety cents, was admitted to be due to them, from the defendant, on the 21st of September, 1802. The plaintiffs, by their agent, August, 1802, made a settlement with the defendant, of an account they had against him and a person by the name of Seymour, trading together under the firm of Seymour and D'Camp, by taking notes for fifteen shillings in the pound, for the debt. At that time, the amount due from the defendant could not be ascertained, as it depended on the result of certain shipments, made to New-Orleans. As to the amount of that account, the defendant declared, that he wished for no deduction, and would settle it in a short time. Upon this evidence of the plaintiff, the counsel for the defendant moved for a non-suit, on the ground, that the goods for which this action was brought, were sold in the life time of Charles Holmes, who was a partner, and whose name did not appear in the declaration. The judge was inclined to grant the nonsuit, but as it appeared, that the defendant, in his notice annexed to the

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plea, had a defence on the merits, he thought it proper to re■serve the question.

The defendant then produced in evidence, a power of attorney given by the plaintiffs, and several other creditors of Seymour and D’Camp, dated the 26th of August, 1802, authorising T. Dwight, Esquire, of Hartford, to compound and agree with Seymour and D’Camp, for their respective debts, and to take such securities, for such parts thereof as he should deem best for their interests, and to execute releases and discharges for the same. The defendant further proved, that the attorney of the said creditors, took from one Edward Seymour, a mortgage, dated the 15th of October, 1802, to John and N. Griffiths, as trustees for the plaintiffs and the other creditors, as security for the several debts due from Seymour and D’Camp, and also for the debt for which the present action was brought, payable in three years from the first day of September, 1802. The defendant then offered to prove, that it was understood by the creditors who gave the power, that it authorised the settlement of this debt, as well as the joint debts of Seymour and D’Camp, which testimony was overruled by the Judge.

The defendant, also, produced a written paper, by which it appeared that he had, on the 19th of January, 1801, given to Charles Holmes &? Co. his promissory note for the goods sold and delivered to him, for which the balance was now claimed by the plaintiffs. This proof was objected to by the plaintiffs ; but the judge observed, that if a negotiable note had been given, and was not produced, he should consider it as a bar to the action on the implied assumpsit. The plaintiffs then produced the note.

The jury found a verdict for the plaintiffs for the balance of the account with interest.

The counsel for the defendant moved to set aside the verdict, and that a nonsuit shoidd be granted, for the following reasons: 1. That Charles Holmes, being a partner with the

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plaintiffs, at the time the goods were sold to the defendant, his death should have been stated, and the plaintiffs have brought their action as survivors.

2. That the note ought to have been declared on.

3. Because the power of attorney and the proceedings under it, shew that this debt was secured by a mortgage, not due when the suit was commenced.

This motion was argued at the last term, by Emott for the plaintiffs, and Evertson for the defendant.

now delivered the opinion of the court. If there had been no count in the declaration on an insimul compatassent, I should have considered the first exception as fatal, notwithstanding the cases^[4] cited by the counsel for the plaintiffs. On examination, those cases will be found not to contradict the proposition, that in declaring on a debt contracted with the plaintiffs and another, since deceased, his death, and the survivorship of the others should be alleged; for, otherwise, it would not appear to be the same promise.

The defendant, in September, 1802, stated an a° count exhibiting the balance due from him, claimed by the plaintiffs. Formerly, the stating of an account was conside ed so deliberate an act, as to preclude any examination inv> the items.^[2] A greater latitude has of late' prevailed, and any errors may be shewn and corrected; but still the stating of an account, is regarded as a consideration for the promise; and it is in the nature of a new promise.

Technically speaking, a negotiable note is not an extinguishment of an antecedent debt; yet it has been deemed ah extinguishment sub modo. In the court of King’s Bench,^[3] a negotiable note or bill of of exchange, has been held to

† † 1 Durnf. and East. 40. Truman v. Hunt.

§ § 2 Bac. Ab Debt. (G.) 290. Gwillim’s Ed. See also, Bac. Ab. Vol. 1, p. 281, note, and 5 D &. E. 513. Kearslake v. Morgan.

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be an extinguishment of a simple contract debt, the defendant being liable to pay the money to a third person.— Though this principle is not to be found in any adjudged case, yet it is so reasonable and necessary a rule, in a commercial country, that I am disposed to adopt it, with this qualification; that where a negotiable note has been given for a prior debt, not to suffer the plaintiff to- recover on the original consideration, unless he shews the note to have been lost, or produces and ^egoeslff-it at the trial.

The poxver of attorney to Mr. Dwight, did not, in its terms, authorise him to compound or take security for the debt in question; and the testimony offered to prove that it did give him that authority, xvas of the most slender kind, the mere understanding of the general creditors of Seymour and D'Camp. 'I he judge, at the trial, very properly rejected this evidence; and if the plaintiff will now stipulate to cancel and file xvith this court, the note given to them by the defendant, the present motion ought not to prevail, otherwise, I think it ought to be granted.^[4]

Judgment for the plaintiff’s.

* Thcounsel for the plaintiffs produced the note, cancelled, and filed if with the clerk.

Footnotes

* 2 Durnf. and East. 476. Smith v. Barrow. 5 Durnf. and East. 493. Slipper, et alia, v. Stedstone. 6 Durnf. and East. 582. French v. Andrade.