The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1861-05-31
D70lsloNs q THH aloa coUE'


n HIta D.
earl river trade" fsianedl chsri.. <, 4,
Il roA' and the declaration aveFs ,f..,
~ So4t was 70 b butt, by the said F,v
~ q hiil, and & was agreed b., "a
- -''N ssItsfs u ir,itsaf5zai 4. ., s,sl -
rom the plaintiff, that said bo,t -
p, com pieted and broupht into ~
Aiter trade in the falf of lss-
Lac eaFiE nant M sa4s.a ..s..s N "
agreed. nor was the money invested M tltl
building of the steam boat as agreed, an
that the defendant has failed aud refuse
TO refund the money 20 plaintiff. Iher
Is also a count in the declaration Tor mo-
ey had and received
The defendant pleaded first the gener-
Al issue, and 81 special plea which w.e
iemurred to and the demurrer sustineo,
and upon leave 10 plead over another piea
was filed. which is in substance as FOL
lows, that Immediately after the reception
of the money and the execution OF d.,
receipt mentioned In the first count ii
the declaration. the defendant in pursu
ance of the object for which he received
the money as stated IN the receipt and j.
order 70 carry out the purpose therein eN
pressed. did with The knowledge and con
sent OF the plaintiff. hand the said none,
TO D. G. Hill (who was 20 superintend th
construction Of the steam boat mention,
in said receipt. as the plaintiff well knew
and approved OF the said money TO O.
used by said Hillfor the plaiAtitf IS beneti
in and about the building ol the sal,
boat since which time. the defendant ha
never had or received any part OF ssi,
sum Of money. To this plea the plain
tiff likewise demurred. and the demurl
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 thu
Is set up in the original plea it is only ne
cessary in the view we take ofthese pleas
- consider the demuerrr TO the amendro
plea.
Tie grounds Of demurrer are that the
plea seeks 10 vary the written contract
and tse defence set up is contradictory
70 the acknowledgement contained in the
receipt, and that the plea is not a sutf
eieut answer to tine declaration.
The two first grounds are not well ta
ken. The declaration alleges that th'
defendant reegived the money TO be in
vested in the beilding of "a steam boat
shown by his receipt, and that the hon
was to be built BY the defendant and Hin
and that the defendant agreed when o.
obtained the money from the plaintiff
that the boat was TO be completed ana
brought into the Pearl river trade in an
'all OF 1857. Il j. manifest. that so far q
the obligation Of the defendant to inve-
he money in the building OF the stean
boat was concerned. il would have beei
4 sufficient discharge of that obligation
the defendant had with the consent of
the plaintiff
party who
constructio
him for tn
been 4 cor
contract tC
ing of the
-istent wit
iectionabl,
But still
the decla
llaint was -s-s stfe uctenuau
had undertaken. 10 invest the money in tb
buildiug Of m steam boat. but that IL wa
20 be built bv him and Hill, and mpl,
Ted and brought into the trade by a..
time stated. Ii this be true, il was no
a perfo,f fmanee Of his contract that he de-
liyeredl the money TO Hill in furtheranc,
of IN e enterprise and with the pltintiGf
consent. for, by the terms OF the contrac
as stated. he became further responsible
r.Or the building OF the boat by himseI
4 and Hill. which obligation was not dis
I charged by his mere delivery of the mon
~ to Rili, with the plaintiff > consent
/ Taking the statements of the plea as true
the plaintiff might have been willing thu
the money should BE- placed in the hand
/ of Hill to be used about building u,
boat. and yet that would not affect the ~,
possibility Of the defendant 10 see tha
he boat was built and completed, accord
Bg 10 the statement of that material pan
of the contract In the declaration. Or
this ground the demuIrers were proper
Z ~ sustained
After the judgment upon the demur
ters the case was tried on the general d.
ue, and verdict returned for the plain
lff. The defendant made a motion for
new trial on various grounds which wa.
I overruled. and exception taken thereto
The errors assigned thereon, are, the
/ granting the instructions asked by th'
/ plaintiff, the refusal Of those Of the de
4 endant. and the overrulIng Of the mo
lion for new trial, as the verdict wa
contrary to the evidence.
The objections founded upon the in
/ ~tructions granted and refused. as well a
( the ground OF the motion for new tria
/ because the verdict was against the eyi
/ dence, proceed upon the view taken d
/ behalf q the plaintiff in error, that I'd
4 evidence did not show that the defend.u
! was to be res ponsible for the building %
/ the boat, but on the contrary that he wa
/ only bound TO deliver the money TO Hi
/ wbo@was charged with the building Of th
+ boat. and that he was not responsible a.
I ter that IF the boat was not built.
This appears 20 be the turning point O
/ the controversy between the parties. ant
I the question appears to have been fairl,
-ubmitted to the jury by the instructIop
/ We perceive nothing in them Of whicI
I the defendant has just ground of com
/ plsint.
/ A. TO the insufficiency Of the evidencl
/ o show thar IL was the understanding %
( be- plaintiff and defendant that the LAT
I Ter was 30 b. responsible for the building
I and conn fletlon If the boat. We cou-id-i
I the verdict as amply sustained.
II was distinctly te=tili-d by The plain
tiff. that when the DESCENDANT received fht
money from him, the defendant stated
that the boat was 70 be- built bV h5m aud
Hill. and brought into the Pearl river
I trade. and that this was the express and
I only consideration on which he let the
I defendant have the money, that defend
( ant came 70 plaintiff. and proposed O.
/ him TO take an interest in the boat which
I defendant and Hill and Others proposed
+ to build. and the plaintiff ssid lie would
give Sl000 for that purpose. that be un
derstood from defendant that Hill was tC
superiutend the building Of the boat. thai
4 be had nothing 70 do with IilH himself
E but intended 10 contract alone with DE-
I fendant, that on the day o. the date 81 ths
receipt defendant and HIli came q
plaiutid's house. and defendant said eve
4 have come for that money" aud plaintiff
thsn counted il out on a table and HUI
took hand defendant gave the receipt fol
10 mentioned IN he declaration. that aifei
the failure to complete the boat and a'tei
( the expiration 0f the time agreed on
I plaintiff called on defendant To- hts mon
I ev. who said be had not the money q
that time. bur offered 10 give him a mort
/ gage on some slaves Of ne would wait fo'
the money. which pisintid declined aDc
defendant never denied his Liability t0
the money
HIl tesfifed for the defendant ID.
same in sutsfance in relation 10 the CIR
eurn-fances attending tile FeceE EtIon 81 th'
money from the plaintiff A. stated ah0Ve
and that after he received the money h'
deDoeifed i with = meIcantIie bouse ir
New Orleans. aud proceeded 70 Cincin
naff and wifh the business ~ haTsug th'
ho.t hrufIf there bar br-for- it- completion
me r.-runiarv embsrra=- rIenfs of ls3'
ra-n@cr and csused the failure of the Hpus'
- wew Orleans with which the monel
bed been deposited. and the enferpri-'
r.7i.5 .-,d -. auand Jned hecauss Of Oh.
loss Of this money. that the House va
,-ood and solvent when the money wa
derosir.d and after its faiiure h- n0til-r
attendant Of Il. but gave no notice 70 th'
rlsintiF thar a. never bad any thing Q.
~ with plaintiff 81 any time in the husi
pess excent going with The defrndani apr
gatsfn, the money a. above stated, and )
Was undersfoad that witness was 20 b
CAPTAIN and defendant the plot Of thl
boat when built
The defendant testified in bis own be