The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1861-05-31

Pearl river trade. lslgnedl Charles ii |
Fox. and the declaration AYERS thar sal
boat was TO be built by the said Fox an,
one y g. Hill, and it was agreed BY III |
s1lul i05t 8tIeii ile Sbta3lszffhe saia ssuie
ey from the plaintiff, that said boat wa
TO be completed and brought into III |
Pearl River trade in the fall of 1857, o
during the early part Of the winter
1878. and that said boat was not bull
and brought into the Pearl river trade e. |
agreed. nor was the money invested in th' |
building of the steam boat as agreed, an,
that the defendant has failed and refuse
TO refund the money to plaintiff, Their
is also count in the declaration for MOI
ey had and received.
The defendant pleaded first the gener-
al issue, and 2d "a special plea which W.
iemurred to and the demurrer sustained. |
and upon leave TO plead over. another plea
was filed. which is in substance as fol
lows, that Immediately after the reception
of the money and the execution OF th'
receipt mentioned in the first count il
the declaration. the defendant in pursu
ance of the object for which he received
the money as stated in the receipt and il
order to carry out the purpose therein ex
pressed, did with the knowledge and coh
sent Of the plaintiff hand the said none,
TO d. G.. Hill (who was to superintend ia
construction Of the steam boat mentionrC
in said receipt as the plaintiff well knew
and approved of the said money to p
| used by said Hillfor the plaintiff 3 benefi
in and about the building OF the sal
boat, since which time. the defendant ha
| never had or received any part of ssit
sum of money. To this plea the plain
tiff likewise demurred and the demurti
was sustained, and this, together with ia,
| judgment on the demurrer to the origina
second plea, is the first error assigned.
As the amended plea contains all tina
| Is set up in the original plea. it is only ne
1 cessary in the view we take Ofthese pleas
! - consider the demuerrr to the amendet
] plea.
The grounds of demurrer are that th,
| plea seeks to vary the written contract
and tae defence set up is contradictory
10 the acknowledgment contained IN the
receipt, and that the plea is not a sutf
cieut answer to the declaration.
The two first grounds are not well IA
ken. The declaration alleges that Ia,
defendant received the money to be in
vested in the bbilding of a steam boat,
shown by his receipt, and that the boa
was to be built by the defendant and Hill
and that the defendant agreed when h
obtained the money from the plaintiff
that the boat was to be completed ana
brought into the Pearl river trade in tn
! 'all OF 1881. 1t Is manifest. that so far
the obligation Of the defendant to invee
| the money in the building OF the steam
boat was concerned, il would have beei
a sufficient discharge of that obligation i
the defendant had with the consent %
the plaintiff
party who'
| conStrucuo
him for tn
been cor
contract Z
ing Of the
-lstent WIT
Iectlonablt
But stlll
the decla
plant was '.s 'iiv ueteiiof'l
had undertaken 10 lhVestth money IN IN
building OF thsS s'eain ooal, ou' ,u"'l y WI
10 be built by nun anu hAl' anu ,hple
led and breougnt mo 'he Uade oy y
time statefd' II thls DC true, ~ was no
pertoF 1iAilce ol uiS oontFaet 'Aal Ne u'
livere6a the money 10 mn IN iaftheranc
of th5 enterprise ana with tne plalntih
consent, Tor, by the terms OF the contrsC
as stated ne became iurther responsloi
For the building OF the boat by hlmse
and hlli, which Obligation was not Oh
; charged by his mere delivery OF the MOI
n ~ to Hill, with the plaintiff 5 consen
y Taking the statements OF the plea as tru
< the plaintiff might have been willing thl
a the money should be placed in the han'
p of Hill, to be used about building q
p boat. and yet that would not affect the r
T' possibility OF the defendant 10 see tn
e he boat was built and completed, aceor
:. Dg TO the statement OF that material pa
d OF the contract IN the declaration. y
IL this ground the demuIrers were prope
n ty sustained.
II After the Judgment upon the demu
h iers the case was tried on the general
p ~ue, and verdict returned Tor the plan
II IN. The defendant made motion ior
a. new trial on various grounds winch w
OF oVerruied' ana exception taken theret
le The errors assigned thereon, are, Il
e granting the instructions asked 6y |!
n pIaihIl' the felusal Oh those oi the
,u iendant, ana the oVerruling OF the m
o. tlon Tor new iriai' as the verdlct :"
n contrary to the evidence:
re- The objections founded upon the
ly structions granted and refused, as well
rt the gfounu OF the motion lot a new ul
as because the Verdlet was against the e'
ry dence. proceed pom tne view taken
lt oehali OF the Pialnlin IN error tnat u
he evidence old not sho" that the oeiehua
sh was 70 oe respohsiole lof the oui,uihg
us thS ooat' out on ,he contfar! that ne W W
OF only ooul'1 70 usilVeT lne money 70 II
|, ! who'"as charged with the ouliulhg OF 1
ul boat, ana thst ne was not iespohsloie
; ter mat II tue ooat was not oull''
lhls appears 10 oe Ihe turning point
the controversy between the parties, Al
OF the question appears TO nave been IAN
'ry suomltteu 10 the jury Dy 'le lnsTucVlo!
I'D we perceive hothlhS III them o. "hi
ly. the defendant mas just grouno OF CO..
M plant
.ry As 10 the lnsulhcieney o, the eViueh
en 20 snow that II was Ihe UNDERSTANDING
he me plalhuu anu uelenuaht thaI lhe
OF ter was 10 De Responsible Tor the onlloi
It's and completion OF tue boat we cohslo
1n- the verdict as amply sustained
+, II II was 0lsllhctly tesllhtu ny 'he pia
be TIN, that when The aeiehdant received
nd money from hlm' the defendant star
en- lnat the ooat was 70 oe' ouiit oE nun
ia, mr. anu 1rouent lnlo lne Ie1ll rl'
saa 'raue' ane tna. ms was 'he e3Press a
OIL oniy o9ns.TeIa'ioi s. on Nnl'n ne iet
"n ueienuah' nave .ne money; 'haV ueiS' DlS
eir an ..i'e -;
sto nlm 10 uke an .,t interest IN Tue poat "n
es deleneahI anu ,ll'l anu ocuers ProPo'
nee 10 oeila, aioo ana .he plalh'lh sa,u ne wo'
ION give sivOV Tor tiist Purpose' ina. ne
MS derstoou from ueiehuahV tnAt mn was
on suPerlntena the ou'iuiig ol I9s me, opae, :
,ea- ne h1o no.iiine " uo "i'I ii"A il,iiS
nat out iil'eneeu - o1il'i,eo' Sione WIN
the iendah'' that on 1ne way u t1.1 rliS ua'e ol
TO reeelpt; uelenoahe ' "1u nh came
heo Plalntlu mouse. anu uelenuNlL w, ;, m sa'u
naVe Come 'Gf .ii@' uloue!, 1l'u llsi1
ule .ntn counsen , = = uns ou '.'o.e "nu
INC .ooN au =;
~ lhFn,ioneu ~ .liG at'on' .'.I a
~ .he lalluse 70 coill p,e'e ~ 'ne ooa' a''u .
oJ .Ie ,;F I'LL % Slss IIs 5iuAe SeIseu
Pl"iiis'lI oii ~ iO' i's -
rue ey, VINO sAlu ne hau not the money