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HARRIS V. JOHNSTON, 7 U. S. 311 (1806)

U.S. Supreme Court

Harris v. Johnston, 7 U.S. 3 Cranch 311 311 (1806)

Harris v. Johnston

7 U.S. (3 Cranch) 311


An action cannot be maintained on an original contract for goods sold and delivered by a person who has received a note as conditional payment, and has passed away that note.

A bill of parcels delivered by I. stating the goods as bought of D. & I. is not conclusive evidence against I. that the goods were the joint property of D. & I., but the real circumstances may be explained by parol.

If part of the goods were the sole property of D. and the residue the sole property of I,, and if I. had authority from D. to sell D.'s part, I. may maintain an action for whole, in his own name.

An endorsee of a promissory note payable to order cannot, in Virginia, maintain an action at law upon the note against a remote endorser, but he may in equity.

Error to the Circuit Court of the District of Columbia sitting at Alexandria in an action of assumpsit for goods sold and delivered and money had and received.

The defendant pleaded the general issue, and upon the trial took two bills of exceptions.

The first stated that this action was commenced on 10 July, 1801, and that on the trial, the plaintiff offered evidence of the sale and delivery of goods, to the amount of $2,149.33.

That the defendant offered in evidence a bill of parcels of the same goods, rendered by and in the handwriting of the plaintiff, Johnston, amounting to 644 16s. Virginia currency, containing a particular account of rum and sugar, beginning with these words: "Mr. Theophilus Harris bought of Dunlap & Johnston," at the foot of which bill was the following receipt, signed by the plaintiff:

"Received, Messrs. Clingman and Magaw's note for the above sum, payable to the order of John Towers or order, endorsed by John Towers and Theophilus Harris payable 2 April, 1798, when paid, received in full,"

which bill was rendered to the defendant by the plaintiff at the time of the sale and delivery.

The defendant further offered evidence to prove that the note in that receipt mentioned was delivered to the defendant with the blank endorsement of Towers, and by the defendant endorsed in blank to the plaintiff, at the time of the sale and delivery of the goods,

Page 7 U. S. 312

and by the plaintiff afterwards endorsed to one John Dunlap, who, on 19 April, 1798, brought suit thereon against the present defendant, Harris in the Court of Hustings, in the Town of Alexandria, upon his endorsement, striking out the name of the plaintiff, Johnston, and filling up the defendant, Harris', endorsement with a direct assignment from Harris to Dunlap. That upon that suit judgment was rendered by the court of hustings for Dunlap against Harris, from which judgment he appealed to the Dumfries District Court, where the judgment of the court of hustings was reversed, * and Dunlap appealed from the judgment of the district court to the court of appeals, where the judgment of the district court was affirmed.

The defendant, on the trial of the present suit, also offered evidence to prove that the said John Dunlap, on 19 April, 1798, also commenced suit against Towers, upon his endorsement of the same note, which suit is still pending in the court below. That the said John Dunlap is the same Dunlap whose name is mentioned at the head of the bill of parcels aforesaid, and who is still living.

Whereupon the defendant prayed the court to instruct the jury that upon proof of these circumstances, the plaintiff could not recover in this action for goods sold and delivered and that, from the bill and receipt given as aforesaid, the transaction must be considered as a joint contract. Which instruction the court refused to give as prayed, but directed the jury that the bill of parcels, before mentioned, is evidence (but not conclusive) of a joint contract of sale for the rum and sugar, and that the plaintiff may explain the transaction by parol or other evidence to prove that he

Page 7 U. S. 313

was the sole owner of the sugar, and that the said Dunlap was the sole owner of the rum, and that the contract for the sale of the sugar was made with the plaintiff in his own right, and that the contract for the sale of the rum was made with him as agent for Dunlap. But if the plaintiff should produce no such explanatory evidence, he could not maintain the present action.

And the court further instructed the jury that if it should be satisfied, that the contract of sale was made with the plaintiff alone, and that part of the goods was the sole property of the plaintiff, and that the residue was the sole property of Dunlap, and that the plaintiff had authority from Dunlap to sell such residue; then the plaintiff had a right to recover judgment in this action against the defendant, for the whole amount of the goods so sold and delivered, and that the other facts stated are not sufficient to bar the plaintiff.

The 2d bill of exceptions in the present cause stated that the plaintiff produced a witness who proved that the sale of the goods was made in the store of Dunlap, where the goods were deposited; that he never knew Dunlap to claim any title to the sugar, nor the plaintiff to the rum; and that, previous to the sale, Dunlap claimed the rum as his separate property, and the plaintiff claimed the sugar as his separate property, and that Dunlap requested the plaintiff to sell the rum with the plaintiff's sugar. Whereupon, the plaintiff prayed the court to instruct the jury, that the evidence so offered was not competent to contradict or explain the purport of the bill of parcels and receipt, or to show that the plaintiff sold part of the goods as his separate property, and the residue as agent of Dunlap, and that it did not amount to proof of such several property and agency, as could enable the plaintiff to recover, in this action, for the whole of the goods sold.

Which instruction the court refused to give, but instructed the jury, that the declarations of Dunlap, or of the plaintiff, or the request of either of them, cannot be given in evidence, unless the defendant was present, when such declaration or request was made.

Page 7 U. S. 314

A verdict being rendered for the plaintiff, the defendant moved the court for a new trial, which was refused, and the court ordered the clerk to deliver up to the defendant, the note of Clingman & Magaw, endorsed by Towers, which was referred to in the receipt, and which was filed in the suit of Dunlap versus the present defendant.*

Upon this case, two questions arose.

1st. Whether the bill of parcels was conclusive evidence of a joint contract of sale, and of the joint property of Dunlap and Johnston?

2d. Whether, under the other circumstances of the case, the plaintiff could recover in this action?

Page 7 U. S. 317

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