Barelli, Torre & Co. vs. Brown & Moses.
The liquidation of an account by a note, though it should have been by . the note of a third person, unless expressly received in payment, does not destroy the open account.
Interest has been too often allowed upon a balance of accounts, after it has been-acknowledged, to be now disputed, interest may be recovered .upon account for money had and received;. and in all cases of certain or liquidated damages.
Tried before Judge Richardson, Charleston, October, 1820.
OnE count in the declaration set forth, that whereas heretofore in consideration that the said Barelli, Torre Co. would deliver to the said Broxvn Moses, divers goods,- wares, &c. of great value, to wit, of the .value of % 35,000, .to be sold and disposed of by the said Brown Moses, for and on account of the said Barelli, Torre £s° Co. for reasonable reward to them the said Broxvn £s? Moses, vendue masters, in that behalf, they the said Broxvn Moses undertook to sell the said goods, wares and merchandize as vendue masters as. aforesaid, and to render a true and just account of the sale whenever afterwards they should be required; and although the said Barelli, Torre Co. confiding in the said promises of the said Brown Moses, did deliver the said goods; and the said Brown ci? Mosés did sell and dispose of said goods for and on account of the said Barelli, Torre EsP Co. for divers large sums of money, of which a balance of 1866 86, remaining due ou the 27th April, 1819, yet the said Brown Moses-
*450have refused and still do refuse to'render a just account, See..
2nd. Count, for money lent and advanced, find also money had and received, by Brown Moses, as auctioneers.
The plaintiffs moved to take this case up under the ven-due act.
The defendants objected; insisting that it did not appear on the face of the proceedings that this Was an aucti-6n debt; which objection was overruled.
Laffitian swore, that he was clerk of Barelli, Torre is? 'Co, "he próved the account filed ; and that on a general balance there was due from Brown'iP Moses, S31,266, exclusive of interest.
The defendants here objected, that no special agreement was proved; and moved that the plaintiffs should- be non-suited.
This motion his honor overruled.
The defendant then called Cherry Moise, a clerk in the house of Brown ^Moses, who proved, that a certain parcel of goods, which were charged against the defendants in the accounts filed, were sold in the house of Barelli, Torre is? Co. on a credit of four months; that the terms of sale were fixed by the plaintiffs themselves; that at this sale Henry Lazarus became a purchaser to the amount of Sl,100, for which he gave his note at four months, agreeably to the terms of sale, with one Pollock as indorser; that hbúi Pollock ivná Lazarus vreta then in good'credit, but plaintiffs refused to accept this note ; upon which Brown and Jiotes gave their own note to the plaintiffs for that amount. Before the note of Lazarus became due, he and Pollock failed, and no payment had been received forthese goods by Brown and Moses. The goods purchased by Lazarus were charged against the defendants in the accounts filed.
The plaintiffs then called Lajff'tián again, who ’ deposed that as Barelli, Torre ip Co. were valuable customers to Brown and Moses, they had some'privileges more than ordinary as to the accepting or refusing of notes taken for *451goods sold for them; and this privilege they exercised in rejecting the note of Lazarus. He further said, that the pote of Brown and Moses had been settled; that at this settlement, Moses, one of the. defendants, admitted the balance of $1866 to be due, and gave his own notes for the same, which notes he produced in court; that afterwards $600 were paid, reducing the sum to $1266, the sum now claimed.
Upon examining the accounts filed, it appeared that the defendants were charged with $1,100 the amount of Lazarus's purchase, but not allowed the payment of the same sum; which shows that the settlement of the note given by Brown and Moses for Lazarus's purchase, was nothing more than this, that the plaintiffs had given up that, note to Moses, and taken his. note in stead.
The defendants then objected, that so far as regarded the goods sold to Lazarus, the defendants were not liable under the vendue act; and that plaihtiffs ought not to recover in the mode prescribed by that act, the amount of those goods which were included in the general balance.
But this motion also was rejected; and the jury were, directed to find for the plaintiffs, the sum appearing due'on the general balance, with interest.
The jury found for the plaintiffs $1266, with interest from -— accordingly.
The defendants moved for a new trial upon the grounds,
1st. That the case ought not to have been taken up under the vendue act; unless it had appeared on the face of the proceedings to be a case within that act¿ That this ac~ tion does not appear on the face of the proceedings to be within that act; because there is no averment that the defendants are auctioneers ; nor is it laid that they undertook as auctioneers.
2d. That it is not competent for the plaintiffs to mix transactions falling within the class of vendue debts with other transactions, to which the peculiar provisions concerning vendue debts do not apply. But the liability of *452the defendants to answer for the goods purchased by La~ zarns is not such a debt as the vendue act provides for.
3d. That if the plaintiffs have received satisfaction for the goods purchased by'Lazarus, then as the defendants are not allowed for such payment in the accounts filed, the general balance for which the plaintiffs have obtained a verdict is erroneous, and the plaintiffs have recovered more by Si, 100, than they are entitled to. But if it be admitted as' the truth is, that those goods have not been paid for otherwise than by the note of Brown Mosesi for which the notes of Moses were afterwards substituted, then'it is submitted, the liability of the defendants to answer for those goods is'altogether distinct from that sort ot debts to which the provisions of the vendue act apply.
4th. That the responsibility of the defendants lor the goods purchased by Lazarus is created by their note, and ought not to be carried beyond it.
5th. That upon the evidence Brown is no longer liable for the goods purchased by Lazarus, either tinder the ven-due act or otherwise, and so the plaintiffs ought to have been non-suited.
6th. That the plaintiffs have not supported their declaration, having declared on a special agreement, and having proved no more than a general indebitatus assumpsit, and so ought to have been non-suited.
7th. That the plaintiffs should not have recovered interest in this case ; for even if interest be allowed upon an acknowledged balance, as in this cáse, the plaintiffs to entitle themselves thereto, should have declared upon an insimul computasset, or at all events for money had and received. ’ ' '
8th. That the acknowledgment of the general balance on which the plaintiffs in this case recovered, was improperly given in evidence ; because that evidence was admitted to prove a debt liquidated, but in fact the debt was liquidated by the note of Moses, given at the time of that acknowledgment; and as plaintiffs did riot choose to pro-*453¡feed ou those notes they had waived the advantage of them, and ought not to recover a sum liquidated.
9th. Because the verdict of the jury is in other respects contrary to law and evidence.
Mr. Justice Richardson
delivered the opinion of the court.
This case is very simple in itself. The witness proved a balánce acknowledged by one of the defendants of $1866, and that $600 had been paid afterwards ; whereupon the jury gave a verdict for $1266, and interest from the acknowledgment. All the rest of the evidence served only to entangle the case, and to bring out the many grounds suggested in the brief; all of which are answered by well established principles. The decision in the case of Rocheblanche vs. Cleary and Gieu, declares that any finding by the jury that the claim of the plaintiff was or was not a vendue debt is altogether superfluous; as the question whether it originated in a vendue transaction need not be decided before the defendant shall have attempted to take the benefit of the insolvent debtors act, upon which attempt alone, it becomes important to inquire into the origin of the debt. After this decision, and under the general issue which was the plea filed in the case before us, the verdict could not be altered by reason of the claims of the plaintiffs being mixed up with' a vendue transaction ; nor even were they altogether of another character, could it avail the defendants any thing for the present, after pleading to the merits. For in either of those cases the only question would be, whether the case must be taken up out of the usual order, according to the act of 1815 ; and any objection arising out of the origin of the debt, as not being ? vendue case, should be brought to the observation of the, court by the claim of an imparlance or some special plea or motion to continue, or at least not by a general denial ol the debt; because upon such an objection the only object would be to decide whether the case was to be taken up, and not whether the defendants might afterwards obtain *454the benefits of the insolvent debtors act. It is competent to join a vendue debt with any other debt, if they are consistent in themselves, i. e. may be covered by the same plea and judgment^ though the mixture may delay the recovery of the vendue debt, perhaps.
Th 'se observations sufficiently answer the objections to the verdict contained in the three first grounds, as arising out of the plaintiffs account, being in £he whole or in part a vendue transaction. I give no opinion on what was their true character, or whether they were mixed or not, or what may be the future consequence in either case. But under the issue made up, and for the present, the only important enquiry is, did the allegations and proofs justify the verdict, independent of the peculiar character or origin of the debt ? Since the decision in Rocheblanche vs. Cleary and Gieu, the only object that I can perceive in stating that the claim arose out of a vendue transaction or in enquiring into that fact is, that the case may be taken ujv primafacie, under the act of 1815, in a summary way.
The 5th, 6th and 9th grounds, appear to be predi-rated upon the supposition, that as Rioses gave his notes to the plaintiffs for the balance acknowledged to be due, neither of the defendants (but more especially BrownJ could be made liable upon the account acknowledged. But it is settled that the liquidation of an account by a note, though it should have been by the note of a third person, unless expressly received in payment, does not destroy the open account, (5 Johns. 72-73. 8 Johns. 389.) The plaintiffs were then at liberty to sue Moses upon his notes, or both defendants upon the original account. And as to the note of Si 100, given for Tazarte, either of the defendants was at liberty to regard the consideration of that note as a part of the general account of the plaintiffs, " and to strike the balance as if no such note existed. The result is precisely the same, whether the note of 01100, be charged to the defendants, or the amount of goods, i. e. 01100, which was the consideration of the note. The parties might adopt either form in order to shew the true balance *455due, and Moses having adopted the latter, bis act is binding upon Brown. I mean not to say that the manner of casting the account made the note of $1100 a vendue debt, if not of that character before. I repeat that for the present, the enquiry is, was' the account proved, not whether it originated in a vendue transaction, nor whether the acknowledgment by Moses made it so.
The. 7th and 8th grounds of the brief remain to be considered.
1st. Was the declaration in due form ? The second count was “ for money had and received,” and the account filed was for divers sums of money received by the defendants for the plaintiffs, upon which a balance was due and had been expressly acknowledged. Could there then be a case more peculiarly proper for such a count, which Chitty, (p. 341,) says, is the proper form, where money has been received, or which, ex equo ci bono, ought to be paid over to the plaintiffs.
Lastly, ought interest to have been allowed upon the balance due, and in this form of action i Interest has bet a too often allowed upon a balance of accounts, after it has been acknoxuledged,, to be now disputed. (Robinson vs. Bland, 2 Burr. 1086. 2 Bro. 662. Blaney vs. Hendricks, 3 Wils. 205. 2 Blak. 761. 1 Doug. 376. See tbc collection of cases, by Day, in 5 Espi. Rep. 114.
In the case of Bulow vs. Godard, (1 Nott & M'Cord, 45,) this court considered the subject with great attention, reviewing past adjudications in detail, and appear to have come to this conclusion, “ that interest is recoverable in all cases of certain or liquidated damages.” The same case also decides that interest may be recovered upon a count for money had and received; (See also Pean vs. Barber, 3 Caines 266. 9 Johns. 71. Lawes on Asst. 488.
The motion is therefore dismissed.
Justices Colcock, Huger and Gantt, concurred.