29 F. Cas. 570 | U.S. Circuit Court for the District of Michigan | 1853
This action was-brought on a promissory note for $2092.01, payable at Oliver Lee’s Bank, at Buffalo, three months after date. The defendants pleaded, 1. The general issue of non assump-sit. 2. That Smart was an accommodation. indorser, at the request of Geisse & Kellogg, and signed the note which was paid 1 November, 1849. 3. That the note in the first and second counts of the amended declaration, was owned and in possession of Elias Weed & Co., which firm was composed of plaintiff and Elias Weed, of Buffalo in the state-of New-Tork, and that heretofore, to iyit, on the day and year last aforesaid at, &e. defendants delivered a large quantity of flour, to wit, one thousand barrels of great value, to-wit, of the value of $3000. in full payment of said promise and assumptions in the first and second counts of the declaration, which flour was accepted to be applied as aforesaid. 4. That the note in the first and second counts of the amended declaration, heretofore, to wit, on the 26th day of Sep., 1849, was possessed by the firm of E. Weed & Co., (of which firm the plaintiff was the company,) and that whilst E. Weed & Co. so held and possessed said note, Asher L. Kellogg, one of the defendants, of the firm of James A. Armstrong & Co., shipped and consigned a large quantity of flour, to wit, one thousand barrels, of the value of $4000, with directions to apply and appropriate a sufficient amount of the avails to pay the note. In his replication plaintiff says, defendant did not pay the sums of money in the first and second counts, or any part thereof, as alleged. That the said Elias Weed & Co. did not receive or accept the said thousand barrels of flour to be applied in payment, &c. To the plea of Smart, he says, that no part of the sum claimed in flour as alleged, was received. The jury being sworn, a deposition of Mr. Sibly was then offered in evidence, which was objected to, as the witness was then in Detroit. The court held the deposition could not be read, if the witness were able to attend the trial. Mr. Sibly states that in the spring of 1849. he was clerk for defendants. He left their employment, and was afterwards agent for the plaintiff, who lived in Detroit. In 1848-9. a contract was made by defendants with plaintiff, for the delivery of 500 bbls. of flour, to be delivered at Buffalo to plaintiff, who was engaged in the forwarding business at that place. Near the close of the spring of 1849, a second contract was
Nonsuit was suffered.