| La. | Nov 15, 1855
Concurrence Opinion
I concur in the opinion prepared by Chief Justice Slidell for these additional reasons, viz :
Gray lived at Louisville, where the suit in chancery was pending against himself and Lonsdale; hence that suit, to which Gray was more immediately amenable, than Lonsdale must have been, in the contemplation of Gray when he entered into the compromise or agreement of December, 1848. At this time Lonsdale's affairs must have been much embarrassed, or Gray^ and the other creditors would not have consented to take twenty per centum on their claims.
Now, in view of the facts that Lonsdale was so embarressed in his affairs, that he resided beyond the jurisdiction of the Court of Chancery which held immediate jurisdiction over Gray, and that the suit was still pending against him at the date of his receipt, 1 am led to conclude that Gray, by the compre
I think, therefore, the judgment should be affirmed.
Dissenting Opinion
dissenting.
On the 17th January, 1847, plaintiff sold to defendant all his interest in the assets of their partnership for the price of $9000, $2500 of which were paid in cash, and the residue was made payable on terms of credit. The defendant also assumed all the liabilities of the firm, which existed at its dissolution, to take place on the 14th of March following. Subsequently, on the 13th December, 1848, the parties signed another instrument, in which, after setting forth the previous agreement, it recites: “ and whereas, said Lonsdale has not performed said agreement, but said Gray has paid or become bound to pay the following sums, to-wit: to H. Ames & Co. (by compromise) $235 40 ; Curtis & Pyrena Wood's draft, $991 09 ; W. P. Holloway & Co., draft for H. Parish, for $1270 54; Stank, Day, Stauffer & Co., account of $294 31; fee bills, costs, &c., in a suit of Swigert v. Lonsdale & Gray, $57 82; also $238 50, lost and paid by having to discount Thomas Brown's draft to secure prompt payment of the balance ; and whereas said Gray has been sued by Blame & Tompkins, upon a claim against Lonsdale & Gray for $1496 36 : Now, if the said Lonsdale shall well and truly pay the said Gray, the said sums of money which the said Gray has paid, and assumed to pay, with interest and costs that may accrue thereon, as above specified, on account of the firm of Lonsdale & Gray, within twelvemonths from the date hereof, and shall also pay and satisfy, from time to time, as the same may arise and be established, all claims and demands that may hereafter appear against said firm of Lonsdale S Gray, and save said Gray harmless therefrom ; then, said Gray, in consideration that the creditors of said Lonsdale have agreed to accept from him twenty per cen-tum upon his individual debts, and grant him indulgence for the payment thereof, binds h’imself to surrender and give up to said Lonsdale, said acceptances, amounting to $6500, and receive in lieu thereof, his four notes for twenty per centum upon the amount of said claim of $6500, payable, &c.” This sum of $6500 foi’med part of the price of the assets, payable by defendant, on terms of credit. The following receipts are endorsed on the last mentioned agreement, viz:
“ Received, New Orleans, February 11th, 1850, from Henry T. Lonsdale, five hundred and eighty seven dollars 53-100 — being for H. Ames& Go's debt, $235 40, for fee bill $57 82, and Stark, Day, Stauffeo• & Go., $294 31.
“GEO. E. H. GRAY.”
“ This obligation is this day satisfied by money, and notes, and obligations, which, if paid, will be in full of the within.
“ New Orleans, May 1st, 1851.
“ GEO. E. H. GRAY.”
In the year 1846 the firm of MeKee & Swigert filed a bill in the Louisville Chancery Court, against B. A. Overton and others, on which certain bagging, rope and hemp, were attached and replevied by Lonsdale & Gray, on 9th day of October, 1846, on giving bond and security. MeKee & Swigert then filed an amended bill, making Lonsdale S Gray defendants in the suit, in which David L. Sayre intervened and claimed the ownership of the property. On the
The plaintiff sues for the recovery of this amount. The defendant, in his answer, admits the contract of the 17th February, 1847, but says that it was novated by the one of the 13th December, 1848. After setting forth the receipts thereon endorsed, he avers “ that the notes and obligations referred to in said endorsment were duly paid to said Gray, or if not paid that said Gray had not used due and legal dilligence to collect the same; that the firm of Lonsdale & Gray were never indebted to David L. Sayre-, that the judgment in the petition referred to and set forth, is not in any manner binding upon the defendant; that at the time the said cross bill and demand of the said Sayre was filed, to-wit, in February, 1848, defendant and said Gray had ceased to be partners, their partnership having been previously dissolved ; that the defendant never signed the replevin bond mentioned in this petition; and that this defendant was never cited to answer the cross bill filed by said Sayre, and never authorized any one to appear and answer said cross bill for him, &c.”
It is obvious that this answer is repugnant to the inference sought to be drawn from the plaintiff’s receipts, which were evidently intended to apply only to the debts specified in the contract of the 13th December, 1848. The receipt of the 1st May, 1851, clearly refers to the one given only two days before, as follows :
“Received, New Orleans, 29th April, 1851, from H. T. Lonsdale, eighteen hundred and twenty-one 36-100 dollars in cash, his note at one year after date, for one thousand and thirty-three 90-100 dollars, and an obligation to ,pay Eolloioay's draft in favor of R. Parish, £or $1270 54-100, which when paid, will be in full of all claims to date, and all demands.
GEO. E. H. GRAY”
It is evident that this receipt was intended to apply only to the debts of the partnership, for which the plaintiff had then become liable. This is made more apparent, from the fact that both amounts nearly correspond. The receipt of the 1st May, 1851, must be construed as applicable to the extinguishment of the obligation contracted by the defendant, to pay the plaintiff twenty per centum on the sum of $6500, the price due by him on the sale of the assets of the partnership.
Indeed this may be considered as the only stipulation contained in the agreement of 1848, i. e., to discharge Lonsdale from the payment of the whole amount of the $6500 ; the other matters contained in the contract, as recitals, and inducement, were clearly not intended to affect the previous obligations contracted by the defendant to pay all the debts or liabilities of the partnership. It is true, the stipulation of the defendant is reitevated, that “ he shall pay and satisfy from time to time, as the same may arise and be established, all claims and demands that may hereafter appear against said firm of Lonsdale & Gray, and save said Gray harmless therefrom; ” but it is clear that this added nothing to his former obligations, nor did it operate any change in them. The reiterated promise to perform them, as he was already bound to do, certainly did not create any new obligations. Hence it'is clear that the defendant must be held liable to the plaintiff for the amount of the Sayre claim, unless it
I, therefore, think that the judgment ought to be reversed.
Lead Opinion
I adopt the following opinion prepared by Mr. Chief Justice Slidell, during the session of this Court in May last:
It may be conceded that the judgment paid by Gray was a liability of Lons-dale & Gray, and that under the agreement of dissolution, and the subsequent agreement of 1848, Lonsdale was bound to hold Gray harmless from this liability. But the question remains whether the receipt of May, 1851, endorsed upon the agreement of 1848, is not an insuperable obstacle, as the evidence stands, to the plaintiff’s recovery. Upon this point the case turned in the court below, and must turn here.
The agreement of 1848 embodied a promise by Lonsdale to pay all outstanding liabilities of Lonsdale & Gray, and, therefore, comprehended the Sayre claim. We are authorized by the evidence to believe, with the District Judge, that the claim was known to both parties when the receipt was signed. When, therefore, in May, 1851, Gray signed on the back of this agreement, comprehending this liability so known to both, the broad acknowledgment: “ this obligation is this day satisfied by money, notes and obligations, which if paid, will be in full of the within,” how is he to escape from it ? In one way only. By showing by satisfactory evidence that there was a mistake in the confection of the receipt. It is true, a receipt is not conclusive against the party signing it, but it is to be deemed prima facie evidence of the fact it asserts and the intention it purports to express ; the burden is on the party who desires to contradict or escape from it, to make out a clear case of error or fraud. This has not been done in the present case. The receipt is not contradicted, and the plaintiff’s case has, in reality, little to rest upon but a mere conjecture of oversight or forgetfulness, unsatisfactorily inferred from the fact that although the Sayre claim existed, it had not yet ripened into judgment and been paid by Gray.
Judg ment affirmed, costs of appeal to be paid by plaintiff.
Concurrence Opinion
I concur in this opinion.