17 Mo. 267 | Mo. | 1852
delivered the opinion of the court.
This was an action in the nature of assumpsit, for goods, wares and merchandise, instituted by the appellants against the respondents in the Court of Common Pleas in St. Louis county. The process was an attachment which was served on the steamboat Excelsior, and upon- property in the hands of a garnishee. The defendants appeared by attorney and answered the petition ; judgment was rendered for the respondents on the following agreed state of facts : “It is agreed, that the facts are these ; that the plaintiffs are and.were copartners, as stated in their petition ; that the accounts sued on were furnished as stated in the petition, and at the prices therein stated. It is admitted that the agreement signed by the parties, a true copy of which is herewith filed, had reference to the ease above mentioned, and the case of the same plaintiffs against J. B. Goldsberry, and the accounts mentioned in the plaintiffs’ petition, in each of said cases, and that the attachments referred to are the attachments in. the cases above. It is admitted that James M. Emerson, one of the defendants, did, on his return to Dubuque, place in the hands of the person appointed to receive the assets of J. B. Goldsberry & Co., as stipulated in said agreement; that the indebtedness mentioned in said agreement, for which plaintiffs agree to give a receipt, includes the two accounts in the petition in the above cases mentioned. The agreement is as follows :
“$2,584 85.
“ On demand, I promise to pay to Messrs. Wade & Osborne, or order, for value received, twenty-five hundred and eighty-four dollars and eighty-eight cents. St. Louis, August 15th, 1851. Signed, “ JAMES M. EMERSON.”
“ The note above written, dated August 15th, 1851, paya*269 ble on demand, for twenty-five hundred and eighty-four dollars and eighty-eight cents, which I have this day given to Wade & Osborne, is for the following considerations : 1st, they give me a full receipt for all the indebtedness of Emerson, Goldsberry & Go., and J. B.. Goldsberry & Oo. to them ; 2d, they to release their attachment upon Emerson, Goldsberry & Co.’s interest in the steamer Excelsior ; 3d, they to give me an order on their attorney at Dubuque, for all the asset notes of Emerson, Goldsberry & Co., and J. B. Goldsberry & Co., now in their hands for collection.
“ On my return to Dubuque, I am to place the account they now render me, against Emerson, Goldsberry & Co., and in favor of Wade & Osborne, in the hands of the receiver appointed by the judge to take charge of J. B. Goldsberry & Co.’s assets ; and this debt, for which my note is above given, is to be paid after five thousand dollars of debts of Emerson, Goldsberry & Go., now in the hands of said receiver, against the assets of J. B. Goldsberry & Co., are paid, and when the assets of J. B. Goldsberry & Co. are finally wound up, and Wade & Osborne have received from the receiver of J. B. Goldsberry & Co.’s assets all of their share of the proceeds, then this note I have signed, (the date and amount named in the document to Wade & Osborne,) is to be considered null and void. Signed, “JAMES M. EMERSON,
“ WADE & OSBORNE.
“In presence of Cyrus G. Hoyt.”