M'Kinstry v. Pearsall — 3 Johns. 319

Majority

p. 319

M‘Kinstry against Pearsall.

ALBANY,

August, 1808.

Headnote

P. gave the following receipt to the master of avessel for goods: “ Received of capt. E. Smith, 50 barrels of provisions, on account of David C. M‘Kins-try, 5th December, 1803.” In an action bro’t by M‘Kinstry ag’ainst P. for goods sold and delivered, it was held, that the receipt was not evidence of a sale of the provisions ; nor that they were received on an account due from Ms Kinstry; but rather to sell on commission, in the usual course of business ; and that parol evidence was admissible to show that the provisions were in fact received, to sell on commission, and so far to explain the written receipt.

THIS was an action of assumpsit. The declaration contained a count for 50 barrels of beef, sold and delivered ; a count for goods sold generally, and the general money counts. Plea non-assumpsit.

The cause was tried at the Columbia circuit, in October, 1807.

The plaintiff gave in evidence a paper, signed by the defendant in the words and figures following:

“ Received of captain E. Smith, 50 .barrels of provisions, for account of David HP Kinstry.

“ Robert Pearsall.

“ 5th December, 1803.”

The defendant then proved by his clerk, that in Novem ber, 1803, the plaintiff called to settle a debt which .he owed to the defendant, as one of the executors of S. Boivne -; and the plaintiff, upon that occasion, told the defendant, that he had provisions, which he would leave With the defendant to sellj but wished him to keep them for a higher market, and thereupon the provisions mentioned in the receipt, were sent to the defendant.

The witness further testified, that Pearsall never received provisions, except to sell on commission; that this was his uniform custom ; that the provisions in question were sold in July following, at a credit of 60 days, to Allison fc? Giger, who were then in good credit ; that their note for these and other provisions, amounting to 530 dollars, indorsed by the defendant, was discounted at the bank ; that the purchasers failed before the note fell due ; that PP Kinstry was informed of this in the autumn of 1804 ; and that the provisions had made a bad debt. The note was protested for non-payment, and was taken up by the defendant.

The sale of the provisions, and the taking the note, &c. were in the usual course of mercantile business, in cases ,of this kind.

p. 320

On the 16th April, 1805, M* iKinslry wrote to Pear salt as follows : “ You will be so obliging as to inform me what my provisions, left in your hands last autumn, sold for, in order that I 'may make some arrangements to settle my accounts. I have satisfied Messrs. Hosmer & Rodman, respecting the demands the estate of S, Botone had against me.”

All the evidence offered by the defendant, was objected to, and the judge thought it improper, but allowed it to be given, de bené esse, '

The judge charged the jury that upon the declaration, and evidence, the plaintiff was entitled to recover, and the jury found a verdict for the plaintiff, accordingly.

A motion was now made to set aside the verdict.

1. Because it was against evidence,

g. For the misdirection of the judge,

Hopkins, for the defendant.

R. Williams, contra.

delivered the opinion of the court. If the receipt had been in terms more explicit than it is, it would be open to explanation ; I mean that kind of explanation not directly contradictory to, but consistent with it,^[1] With resPect to papers of this kind, the courts have permitted the party to show mistake, fraud, and imposition, in obtaining them, It is necessary, ip this case to go so far, as the receipt itself is perfectly equivocal ; and from the mere reading of it, no one could say whether the pro- ' visions were received to go on an account held by the defendant against the plaintiff, or whether the defendant meant only to acknowledge that though the provisions were received from captain Smith, they were received by the defendant for safe keeping, for or on account of David M'Instry, I should understand the receipt to import the latter, for several reasons ; because there is no sum mentioned at which they were received, and because, for account denotes ' with more propriety, the ownership of the property, rather than that they were received op an account against him.

* Peake's Ev. 117, 118. 8 Term Rep. 379.

p. 321

Being clearly of opinion, that the evidence offered, did not contradict the receipt, and that it was admissible, I think that the defendant has fully exonerated himself from any liability, by showing, that he received the provisions to sell, as a commission merchant 5 that they were sold on credit, .and to a house of credit; and that, by the failure of that house before the note fell due, he has recovered nothing from them ; and that this was in the usual course of mércantile business.

We are, therefore, of opinion, that the defendant is entided to a new trial, with costs to abide the event of the suit.

Thompson, J. not having heard the argument of the cause, gave no opinion.

New trial granted.