13 Ind. 148 | Ind. | 1859
The first question in this case is, whether the accounts in favor of the firm of Saucer and Davis were assigned by an instrument of writing existing between them, as follows:
“ Connersville, Indiana, September 20, 1856.
“ Articles of agreement, made this day and date above,*149 witness, that J. W. Saucer has this day bought the entire stock in trade of the firm of J. Saucer & Co., and does agree to take all the stock on hand, and, also, all of the accounts due the firm, and become liable for all of the claims which are against the said firm, and release the said A. M. Davis from all liabilities that the said firm is liable for at this date.
[Signed] “J. W. Saucer, [seal.]
“A. M. Davis, [seal.]”
We think that all such accounts as were due the firm, in their regular course of dealing were by the above instrument transferred, at least equitably, to the purchaser.
The suit was for various articles furnished in fitting up a hall for, and in feeding, &c., persons who attended a ball. A bill of particulars was filed.
Upon the trial, Davis testified that at the time the article of agreement was made between him and Saucer, no such charges as those sued upon had ever been made in their books against Heron, nor, so far as he was concerned, did they ever look directly to Heron to pay for the items now sued for.
Davis appears to have remained one of the firm of Saucer & Co. for some considerable length of time after the goods now sued for passed from the possession of said firm. Up to the time he left the firm, no charge appears to have been made against the defendant, of the goods thus furnished to others, nor was any written evidence shown by which he agreed to answer for the debt. A new trial should have been granted.
The judgment is reversed with costs. Cause remanded, &c.
