Swearengen v. Orne

Napxon, J., delivered the opinion of the Court. J. & B. Orne sued the appellants, in an action of assuffipsit, upon a note for $933 32, and recovered judgment. The declaration contained a special count upon the note, in which it was averred, that the defendants, by one Samuel A. Coale, made their certain promissory note in writing, &c. The common money counts were added. The defendants pleaded — non-assumpsit, payment, accord and satisfaction, and the Statute of Limitations. The note offered in evidence upon the trial, and proved to have been executed by the defendants, was signedj “Swearingen and Bredell, per Samuel A. Coale.” The plaintiffs below composed the firm of J. & B. Orne, and, in 1839, an agent of this house received of Swearingen, on the defendants, several notes, signed by John Riggin, and endorsed by T. J. Payne, which notes, when paid, were to be in full satisfaction of the note sued on, and others, with the collection of which he was entrusted. At the time this arrangement was made with Swearingen,’ the firm of Swearingen & Bredell had been dissolved, and Swearingen alone was entrusted with the business of settling the concern. Nothing was realized from the notes of Payne & Riggin. The court instructed the jury, “ that there was no evidence in support/of’ defendant’s pleas, of accord and satisfaction, and payment.” It seems, from the bill of exceptions, that, in the argument addressed to the jury, the counsel for the defendants, notwithstanding the instruction of the court, contended, that the facts sustained the pleas of accord and satisfaction and payment, or at least sustained the same defence upon the general issue; whereupon the court again instructed the jury, that “there is no evidence before the jury of the discharge of either of the defendants from the debt, evidenced from the note read io them.” The first instruction was excepted to, and after verdict for the plaintiffs, the defendants moved for a new trial, which was not granted. It is insisted that the court erred— First, in permitting the note of Swearingen and Bredell to be given in evidence under the special count; and, Second, that the instructions were improperly given. The averment is, that the defendants, (i.e., E. Bredell & J. T. Swearingen) by one Samuel A. Coale, executed their certain promissory note for, &c. The objection is, that it did not aver that said defendants were parties in' trade, and executed the note as such, under the style of “ S. & B.” It is admitted, that the note was evidence on the money counts, and it is not perceived very material whether the note would sustain the special count or not. But, as it is apparent that the defendant has sustained no injury by the instructions, the verdict and judgment being obviously for the right party, the judgment js affirmed.