Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1883-12-13
WILMINGTON, DEL. THURSDAY, DECEMBER 13, 1888

This is a suit brought by Mary Kirkpatrick
to recover ~ 900 on an instrument of writing
executed by Martha Kirkpatrick, directing
her administrator to pay to Mary that amount
of money six months after the said Marthas
death. This instrument was drawn as a
promissory note, aud purports to be 'for
| value received"
The plaintiff is represented by Benjamin
Nields, ESD, and the defendant by John q.
| Patterson and William G. Whiteey, Esqs
In the argument last Friday and Saturday
Mr.. Nields contended that as this paper was
signed and sealed in the presence of wit
neeses by Martha Kirkpatrick, it was clearly
intended az an obligation, and to show an in
debtedness Oh her part to the plaintiff.
Messrs. Patterson and WAiteley for the
defendant, claimed that ii was not Il note and
not intended to show an Indebtedness, but
was a bequest, and as such should tako the
usual course OF testamentary documents. II
was finally determined, after argument, to
leave the matter with the court, and the
decision was read by the chief justice this
morning.
1t is a lengthy document, and carefully
reviews the case in all its aspects closing with
the decision that the instrument of writing IL
a legal document of Indebtedness, and i'll the
opinion of the court executed by Martha
kirkpatrick with that understanding and i'll
tent.
A short discussion ensued between the
| court and Mr.. Patterson i'll reference to the
decision, after which Austin Harrington, Esq.,
made application to the court to set a time
for hearing argument on the motion for u
new trial in the List case.
Tho chief justice said he would hear the
argument Wednesday morning, but gave Mr.
Harrington notice that he must make il
short. Wednesday afternoon was set M the
time to bear l. G. Grubb, Esq, on his motion
to quash tho indictment in the case of George
Hagany, alias ''Slim jim"
| in, ha f11an lion pf
Duncan Bros. vs., James II. Aaron, came in
at IL 30 o'clock with verdict in favor OF the
plaintiffs for 51i3,23.
A jury was drawn, and the case of John
| McCreary Vi. Enoch Moore, Jr.. was taken
up for trial, with Levi q. Bird, ESQ., for the
plaintiff, and Charles b. Lore and Harry
Emmons, Esqs.. for the defendant. This is
an action brought to recover for 10000 feet
of lumber sold the defendant.
Mr.. Bird explained the case to the jury and
then called John McCreary to the stand. He
testified that he resides in Dauphin county,
Pennsylvania, and is engaged in the lumber
business he had sent 10000 feet of ship
| lumber to Enoch Moore Jr., that was to
have been paid for in 80 days
| AS he did not hear from the firm at the
expiration of that time, ne wrote to them
twice before he received au answer, and
| finally they sent him word to come and
take it away, as it was useless
He came to Wilmington aud upon finding
that part of the lumber had been used, and
| that Mr.. Moore refused to make settlement,
brought this suit.
AT o'clock court adjourned until 8 o'clock
in the afternoon.
| The superior court resumed proceed
ings in tine afternoon with Chief JUS
tics Comegys and Associate Justices
Wootten and Houston on the bench.
Benjamin Nields, ESQ, moved for an
arrest of Judgment in the case of Duncan
Brothers VS.. Jam .s IL. Aaron, and said he
would file his reasons.
The suit of John McCresry vs. Enoon
Moore, Jr., to recover for 10000 feet OF
lumber sold and delivered, was then
resumed, and John McCresry, the
plaintiff in the case, who was on the
stand when the court adjourned for the
noon recess, was recalled. Mr.. Bird
ann ounoed that he had finished his direct
testimony, and Harry Emmons, Esq, for
the defendant conducted the cross
| examination. In answer to his questions,
| the witness said that he was in this city
in the early part Of 1882, aud hearing
| that Mr. Moore wanted to purchase
some lumber called upon him, and
took his order for 20, 600 tset
Two car loads of this lumber were sent
to this city shortly after the witness re
turned to his home in Dauphin county,
and he received letter from Mr.. Moore
complaining that it was too narrow that
| was the only fault found with 1t ; he
shipped the remainder of the order in
| February, and after waiting nDtil the
| next summer without hearing anything
| from Mr.. Moore, wrote 10 him and asked
for his money. He did not receive any
answer, and wrote again and received
an answer from Mr. Moore stating
that the lumber was not accofdIuh
| TO contract, and he should come aud take
| 1t away. The witness then came 10 thi-
city and had very uusatis factory inter
view with Mr. Moore, who told him that
the lumber was outside somewh here, and
he cuu d do what he peased with it, az
he had no use for it. After searching i0l
some tims he found about Que quarter oil
1t scattered around, very mu n damaged
by being exposed to the weather. Mr.
Moore's foreman said that they had useo
abbut 400 feet, but the witness wa,
confident that much more than thai
amount was missing.
James +. Casperson testified to the fact
If the lumber having been brought over
the p, W. & b. railroad, Of which he is
freight agent; Mr.. Moore paid 5l03 freight
TO the company, aud did not make any
complsint about the lumber.
Mr. Bird said he did not think it
necessary to call any more witnesses at
present, and Mr.. Emmons made his open
ing argument to the jury. He stated
that the defence would show that the
lumber delivered was not according to
contract, and that while they admitted
that Mr.. McCreary had claim against
Mr.. Moore, they would show that it was
not so large So stated.
He then called Enooh Moore, Jf., the
defendant, to the stand, and be teatifisd
that in January, 1882, he had ordered
l5 600 feet OF fitch lumber, aud 5000
feet OF edge lumber from Mr.. MeCresry
he had no written contract, but the nn-
derstandiDg was tnat the lumber should
be of the best quality; when tbs first two
car loads came, in February, he found
that it was very narrow, aud he in
structed his clerk to write to Mr.. McCreary
and tell him that unless the remainder
was wider he need not send it. When
the next lot came he found that the
lumber was wider, but of such poor
quality as to be unfit for use, and he
wrote to Mr. McCreary to come and take
it away.
he tHel described the interview Al HIS
office with Nr. MoCreary, and said he had
told him to 90 ahead aud use the lumber,
and he would make it satisfactory, but
ha replied. that it wss of no ase TO him.
Mr., McCreary then went away, and he
knew nothing further of the matter until
he received a note from Mr.. Bird request
ing him to call at his office which he did
aud was told that suit had boen entered
against him.
He made an otfer to compromise the
matter, and Mr.. Bird asked him to put it
in writing aud send it to him, and to the
best OF his knowledge it was nov in his
possession. A piece of the lumber come
three feet in length was handed to the
witness, and he pointed out number OF
defects to the jury, aud claimed that the
entirs lot WAS the same. ....
George Ssurh6tf testified that he ex-
aminsd the lumber when the frat two car
loads were received, and upon finding it
in bad condition reported it TO Mr..
Moore; the witness is employed by Nj.
Moore, and has charge OF his ship yard
William Stevens, another employs of
Mr.. Moors's, was called, but ss he knew
nothing about the matter except from
hearsay, Mr.. Bird objected TO his iesti-
mouy, and be was Withdrawn
Emlen H-wes testified that he examined
the lumber in Mr. MoUrs's yard and
found that it was very detective, some of
it being rotten and worm eaten.