M'Kinstry v. Pearsall

3 Johns. 319 | N.Y. Sup. Ct. | 1808

Spencer, J,

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,^* 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.

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.

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