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The original document is part of the Missouri State Archives St Louis Circuit Court collection.
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The original document is part of the Missouri State Archives St Louis Circuit Court collection.
Whereas,
and you
unto you the said
all and singular the goods, chattels, rights and credits of
the said deceased, lying and being within the said county of
require and receive all, and
all manner of debt and debts due and owing to the said deceased, and well
and faithfully to dispose of the same according to law: And lastly I do
hereby constitute and appoint you the said
administrat
Letters of
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administrator of
all & singular the goods, Chattels, rights
&
credits which were of
by
=mises For that whereas heretofore to wit on the
day of December in the year of our
Lord one thousand
eight hundred & twenty nine,
in the lifetime of the said
=tion that he was then & there indebted to the
said
two thousand dollars, for the personal service, work
&
labor, care
that time
the business & trade of the
said
said
& there faithfully promised the
said
ningham
whenever he should be thereunto afterwards
requested.
And also for that whereas heretofore,
in the lifetime of the said
is since dead, to
wit on the
year of
our Lord one thousand eight hundred & twenty nine
defendant accounted with the said
of & concerning divers sums of money before that time due
in
to the said
sum of money to wit: two thousand dollars; and being
so indebted,
he the said
thereof, undertook &
then & there faithfully promised
the said
sum, whenever he should be thereunto afterwards
requested.
3 And also for that whereas heretofore to wit on the
thousand eight hundred & thirty two
aforesaid & after the death of the said
deceased, at the time of his his death, in a large sum of
money to
wit, two thousand dollars, for the personal
by him in his
lifetime,
in &
about the trade & business of the said
for the said
debt
then remained
undertook & then & there faithfully promised
the said
as aforesaid to pay him the said last mentioned
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be thereunto afterwards
requested
4.And also for that whereas heretofore to wit on the
day &
year last aforesaid, at the County aforesaid, and
after the death of
the said
said
as aforesaid, of &
money due & owing from the said
&
then in
ing the said
indebted to
the said
money to wit: two thousand
Dollars: and being so found
to be in arrear
in consideration thereof, undertook & then
& there
promised the said
administrator as aforesaid, to pay him the said
last mentioned sum
of money whenever he the
said
requested. Yet the said
although often requested, has not paid the
nor any part thereof either to the said
as aforesaid, since the death of the said
damage of the said Joesph as such
Two thousand dollars, & therefore he suees &
And the said plaintiff brings here into court
the letters of
administration to him granted in
one form of law, bearing state the
of October in the year of
our Lord one thousand
eight hundred & thirty
to the Court here that he is such
as in his declaration he has above alleged.
We Command you to summon
appear before
the Judge of our
to be held at
the city of
answer unto
singular the
goods, chattels rights and credits which were of
promises to the damage
of the said
two thousand dollars and have
you then there this writ
Served this writ on
the
by offering to read
it & the declaration
to him which he refused to hear
&
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acknowledged service
This is an action of
Damage $ 2000
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Be it Remembered that heretofore to wit on the
the year of our Lord one thousand Eight Hundred and
thirty three
Administrator of
the
said declaration is in the words and figures
following to wit; "In the
1833
goods chattels rights
&
attorney complains of
-For that whereas heretofore to wit on the
one
thousand Eight hundred and twenty nine
the said
that he was then & there
indebted to the said
to wit
two thousand dollars for the personal service work & labor, care
& diligence of the said
the said
promised the said
he should be thereunto afterwards requested. And also
for that whereas heretofore in
the life time of the said
December in the year of our Lord one thousand eight hundred
& twenty nine
county aforesaid the said
the said
said
in another large sum of money to wit; two
thousand dollars, and being so indebted he the
said
said
afterwards requested - And also for
that whereas heretofore to wit on the
January in the year of our Lord one thousand eight hundred
& thirty two
aforesaid after the
death of the said
of his death in a large sum of money to wit two thousand
dollars for the personal service
work & labor care
& diligence of the said
performed in & about the trade &
business of the said
request & that the said debt then remained unpaid the said
& then & there
faithfully promised the said
as
aforesaid to pay him the said last mentioned sum of money whenever he the
said
on the day and year last aforesaid at
the county aforesaid and after the death of the said
as
such administrator as aforesaid of & concerning divers other sums
of money due & owing
arrear & unpaid and upon that
accounting the said
to the said
found to be in arrear & indebted he the
said
& there promised the said
the said last mentioned sum of
money whenever he the said
-wards
requested.
several sums of money above mentioned
nor either of them nor any part thereof either to the
said
-istrator as aforesaid since the death of the said
unpaid to the damage of the said
&
therefore he sues &c. And the said plaintiff brings here into
court the letters of Administration
to him granted in due form of law,
bearing date the
Lord one thousand Eight hundred &
thirty
is such administrator as in his declaration he has has above alleged
afterwards to wit on the day of the filing of the said
declaration the clerk of the said
thereof to be held at the city of
monday
of March instant then and there to answer unto
of all and singular the goods chattels rights and credits
which were of
deceased of a plea of trespass on the
case upon promises to the damage of the said
Administrator two thousand dollars and have you then there this writ.
Seal Witness
Eight
hundred and thirty three
thereof the Sheriff of the county of
court with his
return thereon endored in the words and figures following to wit;
"served this writ on
refused to hear & acknowledged service -
said March term of the said
filed his pleas to the action aforesaid in the words and figures
following to wit
-ningham
said plaintiff ought not to have or maintain his aforesaid action
thereof against him
the said defendant because he says that the said
Administrator of the goods or
chattels rights or credits which were of the said
alleged
and this he prays may be enquired of by the country
this behalf the said
defendant says that he did not undertake & promise in manner
& form
as the said plaintiff hath above thereof in his said
declaration alleged and of this he puts himself
upon the country
&c. (the third plea of the said defendant being afterwards
withdrawn is not here
inserted or copied)- and the said cause was
continued from term to term until the march term
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I went into the lodge of the defendant &
ham
who from the
statements of the company had been killed about two years before by the
Mackhaba Indians. I had taken up a letter for him but finding that he
was dead I was Induced
to inquire into his affairs-
been
doing very well before he was killed we
at the time of his death he was
in the employ of Smith,
do you know if
understood it from Mr Robert Evans and several other men in the employ
of Smith,
Sublette- Question- do you know who did
business in the
and twenty seven-
whether it was Smith,
Question- is not
brother in law?- Answer
he was married to my sister- She is now dead and he has since
married
again- Question- did you ever hear
money from Smith,
Answer yes- I have heard
him say that he had received two hundred and fifty dollars, it was
last
fall a year ago that I heard him say so, and he said that he received it
since the death of his
brother- and further this deponent saith not
Orville D Shanks-" And the testimony of
the firm of Smith,
partnership begun in July or
or Spring of
furs-
sold them- paid over money &C Witness does not personally know
that
was in the service of the firm but understood
that he was- heard it from various persons & thinks
from
some of the members of the firm- that he went with Mr
& was engaged in that expedition when he
was killed- that he was employed as a hired man-
that in
present
had nothing to do
with it except that he paid the money when the balance was struck
& receipt
given. He identifies the receipt in the following
words"
“October A
D
1830
"full of all demands of
“Administrator” & proves the body of
it to he in the hand writing of
the
witness does not believe that any regular books of accounts were produced at
the settlement-
Had understood that most of the papers of
the firm had been destroyed by the Indians in the
moun-
-tains- He states that
mountains in
account- Persons dealing in that
consisting of
in evidence
the receipt above mentioned and the deposition of Robert Evans as
follows-
"Robert Evans being produced sworn and
examined on the part of the defendant deposes and says- In
"the year Eighteen hundred and twenty five I started to the
"Ashley and
“returned on the fourth of July eighteen hundred and twenty
seven- From the time of my arrival at
"the
"working hunting and trapping for himself- on my Return
from
to wit on the
said plaintiff by his attorney filed his
replications to the pleas aforesaid in the words follow-
ing
plaintiff for replication to the pleas of the said defendant by him
firstly & secondly above pleaded
& whereof he has
put himself upon the country does the like (and the third plea of the
defendant
being withdrawn the replication thereto is omitted) and
afterwards to wit at the said march
term of the said
thirty five
by their respective attorneys aforesaid and thereupon
the said defendant withdraw His
in this case
and neither of the parties requiring a Jury the court refer the matter to
Thomas Gambiland Robert N Moore three indifferent and
competent persons who being duly sworn
well and truly to try the issues
within joined between the parties aforesaid on their oath aforesaid
report to the court that as to the first issue within joined between
the parties aforesaid they do find
that the said
which
were of the said
thereof alleged and that as to the second issue
within joined between the parties aforesaid they do find
that he the
said defendant did not undertake and promise in manner and form as the said
plaintiff hath above thereof in his said declaration alliged which
report is approved of by the court
therefore it is considered that the
said plaintiff take nothing by his said suit and that the said
defendant go thereof without day and it is further considered that the
said
against the said
by him about
his defence in this behalf expended"- and at the same term of
the said
on the
in said cause to wit
overuled
for reasons filed by him
which motion upon mature deliberation is by the court overruled- and
the reasons aforesaid which were filed on the
are as follows to wit; "
plaintiff moves the court to set
aside the report of the auditors & grant him a new trial because
1- the
auditors decided against the evidence in the cause 2- the
auditiors decided against law. 3. the
Court misdirected the auditors in
this that “there is no evidence in the cause of an account
stated
except the receipt"
on the
in the case aforesaid
which is as follows to wit, "
Bill of Except
decd vs
issues on his part gave in evidence the letters of Administration of
Estate of
shall not be inserted) also the deposition of Orville Shanks as
follows "Orville D Shanks being produceed
sworn and
examined on the part of the plaintiff deposes and says- In the fore part of
the winter of
Eighteen hundred and twenty nine I was in the employ of
Smith
firm the present defendant
of
Smith
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home I know not that Smith
I
understood from reports in comp that
& Sublette for one year from about the
together with his horses & equipment for something like nine
hundred dollars and reports
came in confirmed to me by
been killed about the
thirteenth of the following month- when I came down in Eighteen
hundred
and thirty I wrote to
Sublette, as I understood that there was something
due his deceased brother- some time after
about the
with them and showed me the
money that they had paid him the amount I do not know
and further this
deponent saith not-
on either side- Neither party requiring a Jury the court
referred the cause to three auditors
and the evidence being submitted
to them and thereupon the court instructed the auditors
that
“there is no evidence here of an account stated except the
recept to which instruction
the plaintiff excepted- thereupon the
auditors made their report finding the first issue
for the plaintiff
& the second for the defendant and the defendant withdrew his
third plea-
the plaintiff moved the court to set aside the report of
the auditors and for a new trial
and filed the following reasons 1- the
auditors decided against the evidence in the cause
2 the auditors
decided against law. 3 the court misdirected the auditors in this that there
is no evidence in the cause of an account stated except the receipt
“which motion the
court overruled and gave judgment for the
defendant to which proceeding & Judgment
the plaintiff
excepts and tenders this his bill of exceptions &
C-
copy for
$ 3.37 1/2
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and the said
injury when
not to have or maintain his
aforesaid action there
against him the said defendant because he says
that
the said
istrator of the goods or
of the said
and form as
the plaintiff hath above thereof alleged
and this he prays may be
2.And for further plea on this behalf the said defendant
says that he
did not undertake &
and form as
the
in his said declaration alleged and of
this he puts
himself upon the country &c
3.And for further plea in this behalf the said defendant
says that the
said plaintiff ought not to have or
tain
he says that the said
at the time of his decease was and the said plaintiff
as
fendant on a large
of three thousand dollars for divers goods
and
and delivered to the said
and at his
request and for meat
washing and
lodging by the said defendant found
and provided for the said
and at his like request, also for money by the
defen
dant
for the said
and
also for money by the said
had
said sum of money
defendant and exceeds the damages sustained by the
plaintiff by
reason of the sum
supposed promises
& undertakings in the declaration
and hereby offers to set off and
plaintiff the
full amount of said damages
to the
to wit at the county ofresaid, & this
the defendant is
ready to
pleas
1
2
3 set off
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And the said plaintiff for replication
to the pleas of the said
defendant by him firstly
& secondly above pleaded
& whereof he has put him
self upon the County, does the
like
And as to the plea of the defendant by him
thirdly & lastly
above pleaded, the said plain-
tiff says that by reason of any thing in
that plea
alledged, he ought not to be barred & precluded
from maintaining his action aforesaid,
because he says that his intestate, in his lifetime
&
at the time of his death was not and this
plaintiff as such
administration was not at
the time of the Commencement of this suit,
&
not now indebted to the said defendant in
manner & form
as in the said plea is above
supposed,
sum and this he prays may be enquired of by
the
County.
Verdict for defendant - book 8 - page 216
Fee bill 165
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The plaintiff moves the court to set aside
the report of the auditors
& grant him a new
trial - Because
1. The auditor decided against the evidence
in the cause .
2. The auditor decided against law.
3. The court misdirected the auditors, in this
that “there
is no evidence in the cause
of an account stated, except the
receipt”
neo: for new trial
filed
1835
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Be it remembered that at the trial of this
cause, the plaintiff, to
prove the
part, gave in
evidence the letters of administration
of
to prove the issue for the plaintiff, it is
not be inserted) Also
the deposition of
testimony of
following
the firm of Smith
The partnership began in July or
1826
in the fall of
attended to the
- paid over money
know that
service
of the firm, but understood that
he was, heard it from
thinks from
firm
- that he went with
in that
he was employed as a
a settlement was made between
present but is not sure as to
not pay
as he had nothing to do with it except that he
paid
the money, when the balance was struck
receipt given. He identifies the
receipt in
the following words
“
“Smith
“hundred and Fifty dollars, in full of all
"demands of
“as
& proves the body of it to be in the
that any regular books of accounts, were provided
at the
settlement - Had understood that most
of the papers of the firm had
by the indians in the mountains. He
states that
in his employ in the fur trade in the mountains
in
did
business as a free man - that is on his
own account. Persons
regular traders, consiting of horses traps
&
goods, amounting commonly to about $ 500
The defendant gave in evidence the
receipt above mentioned, and the
deposition
of Robert
was given on either side
Neither party requring a jury, the court refered
the cause to three
submitted to them; and thereupon the court
instructed the
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evidance due of an account stated, except
the receipt.” to
which instruction the plaintiff
excepted
report, finding
the first
& the second for the defendant, and the
defendant
withdrew his third plea.
The plaintiff moved the Court to set
aside the report of the
new trial, and filed the following reasons
1.The
in the cause.
2.The
3.The court
that - "there there is no evidence in the cause
of an account
stated, except the receipt .
Which motion the court overruled, and
gave judgment for the defendant;
to which
proceeding & judgment, the plaintiff excepts,
and tenders this his
Bill of exceptions
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Monday of
thousand Eight Hundred and thirty five
George Tompkins and
attorney
Now at this day come again the parties aforesaid by their
respective
attorneys aforesaid and the court now here being sufficiently advised of and
concerning the premises consider that the Judgment aforesaid inform
aforesaid by the
said circuit court rendered be reversed and for nought
held and esteemed and it is
further considered that the said cause be
remanded to the said circuit court for further
proceedings therein in
conformity with the opininon of this court delivered in this case
and
that the said
recover against the said
by him about the prosecution of his writ of error in
this behalf expended and that
he have therof execution
This was an action of Assumpsit brought by the plaintiff
against
the writ of error is prosecuted- The
declaration contains four counts. 1st. for work and labor
account stated between the
intestate and the defendant 3rd. Work and labor by intestate done for
defendant and a promise to the plaintiff as administrator. 4th. an account
stated
between intestate and the defendant. - It appeared in evidence
that in July or
of the year 1826
fur trade and that
in the year
he was killed
by the Indians,- about two years after his death a witness says that he
enquired of
that
lodge of the defendant and of
1830
action had a settlement as administrator of
firm, and received from him two hundred &
fifty dollars for which he gave his receipt as in
full of all demands.
It was not in evidence that at this settlement any regular books of
accounts were produced belonging to the company It was understood that
most of the papers
of the firm had been destroyed by the Indians in the
mountains.- The plaintiff having
acquired the knowledge of this
admission of
had been made
brought this action to recover the balance of the sum admitted to be due.
neither party requiring a Jury the matter was submitted to three
persons whom the court
instructed that no evidence of an account stated
was given except that with the admin-
-istrator. They found for the
defendant. the plaintiff moved for a new trial because as he
contended
the court had misdirected the above named persons to whom the matter in
issue had
been referred. It is clear and admitted by the defendant's
counsel that if through mistake of
the plaintiff or the
misrepresentation of
was due to him as administrator of the intestate, that he would still
have his right of action
to recover the balance- But it is contended
that the only evidence of an account stated
is that stated with the
plaintiff in his representative character. We think differently; Smith's
admission to one witness that the firm owed the intestate $ 1100 is in
our opinion such
as ought to have been left to a Jury and if they
believed the witness it would be sufficient
to justify them in finding
for the plaintiff on the count for an account stated with the intestate
in his life time unless the defendant could be
mistaken in the calculation of the amount due to the
deceased. The
erred in giving such
instructions & therefore should have allowed the plaintiff to
have a new
trial. Its Judgment is therfore reversed and the cause
remanded
Certify that the above and foregoing is a true copy of the Judgment
rendered and of the opinion delivered by said court at the
ministrator of
of
In Testimony whereof I have hereunto set my Hand and
affixed the seal of
the said Court at Office in the
in the county of
Eight hundred
and thirty five
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Judgement & opinion
Filed
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The jury find for the defendant