Opinion
11-23-1811
Snickers v. Dorsey
[Syllabus Material] [Syllabus Material]
Michael Dorsey filed his bill against William Snickers and David Castleman, jun. in the superior court of chancery, holden at Staunton, and obtained an injunction to stay proceedings on a judgment of the county court of Frederick, upon which execution was issued, in behalf of Snickers, endorsed " for the benefit of Castleman."
The judgment was rendered, upon motion in a summary way, for 631. 11s. 3d. with interest and costs, being so much paid by the plaintiff Snickers, as surety for the defendant Dorsey, in a forthcoming bond.
The equity stated in the bill was, that sickness had prevented the complainant from opposing the motion, and that Snickers being indebted to him a much larger sum, upon an unsettled account, for repairs of a mill, & c. (the items of which were particularly set forth,) had made that payment, in pursuance of a previous promise to do so, and in part satisfaction of his debt to the complainant.
The answer of Snickers (among other circumstances) stated that, long after he had satisfied the execution upon the forthcoming bond, " the complainant insisted upon his executing his bond for ninety pounds, as a full and complete satisfaction of all his demands; which this respondent expressly refused to do; because the complainant had not accounted to him for a considerable quantity of flour, perhaps 40 or 50 barrels, manufactured from wheat he had at several times delivered into the mill occupied by the complainant; and also because this respondent considered himself responsible for considerable quantities of wheat, (which had been delivered into the mill, while the complainant was in his employ as miller, by several persons,) unaccounted for, and converted by the complainant to his own use; and this respondent expressly avers that he does not believe, upon that account, he owes the complainant one cent."
The defendant Castleman, by his answer, denied any knowledge of the transactions, as stated in the bill, between the parties, except that, shortly after a bond for sixty pounds (mentioned in the bill) was executed by Snickers to the complainant, (which bond had been assigned to this defendant,) " the complainant informed this defendant that he had offered Snickers that, if he would execute his bond for ninety, instead of the sixty pounds, it should be a complete settlement of the accounts between them relating to the mill business.
The chancellor overruled a motion to dissolve the injunction, and referred the accounts between the parties to a commissioner, who made a report, setting forth that Snickers, though duly notified, had refused to attend, or render any account; that sundry witnesses on behalf of the complainant (whose testimony was stated) had been examined before him; and that a balance appeared due, from Snickers to Dorsey, of 4041. 13s. 1d. March 3, 1806. The items of debit and credit were specially stated in the report, but no evidence was exhibited before the commissioner, in relation to the wheat and flour, for which credits were claimed by Snickers in his answer: of course, no such credits were allowed by him; except a credit, " January 1, 1799, cash for flour, 171. 6s."
See 2 Rev. Code, 94.
A motion was made to recommit the report, upon affidavits of the defendant Snickers, and of Thomas Stribling and Joseph Tidball, witnesses in his favour. His own affidavit stated, " that he now has it completely in his power to establish that he is not actually indebted to said Dorsey to the amount of one hundred dollars; that he can prove that Dorsey acknowledged he (Snickers) did not owe him more, and offered to take that sum, and give him a receipt in full; that he was prevented from offering said testimony to the commissioner, because he did not consider himself interested in the suit against Dorsey at law, inasmuch as David Castleman had only used this affiant's name, and was actually the person interested himself; that he always laboured under that impression until said Castleman's attorney informed him otherwise, which was after the account had been made up and transmitted to court; that he never had counsel in court; and that, when he answered Dorsey's bill, he considered that he was only making a statement of facts for the use and benefit of Castleman."
Thomas Stribling made oath that, some time in January or February, 1806, he sold his crop of wheat to Dorsey, to be delivered on a certain day; and that Dorsey did not come for it until three days after, and gave for a reason, that he had been engaged in settling his accounts with Snickers, which, at last, he had effected, and that Snickers had given him his bond for the amount due him; which bond he had assigned to David Castleman. The witness did not recollect the amount of the bond, but thought it was three or four hundred dollars.
Joseph Tidball's testimony was, that some time in the summer of 1806, Dorsey applied to him to be his security in the injunction bond, and said, at the time of making said application, that Snickers owed him between two and three hundred dollars, which he said would fully pay the amount of the execution which the said Snickers had against him. The witness did not recollect whether Dorsey said the money was owing to him, by a settlement made with Snickers, or that there would be the above sum due him, when he could obtain a settlement.
OPINION
Thursday, November 28th. The president pronounced the following opinion of this court.
" The court, considering it better to permit individual suitors to abide by the effects of their own negligence, or contumacy, than to establish principles leading to the prostration of those rules which have been wisely established for the furtherance of proceedings in courts of equity, approves the decision of the chancellor, so far as it refuses to open the accounts anew; but, inasmuch as the sum reported in favour of the appellee greatly exceeds that which he seemed to think was due to him from the appellant; and which may probably have arisen from his opinion respecting the credits now claimed against him by the appellant, for wheat, delivered into the mill and unaccounted for, (for which he (the appellant) alleges himself to be responsible,) and for flour manufactured by the appellee, from his (the appellant's) wheat; the court is inclined to depart from the decree of the chancellor, so far as to let in the appellant to show himself entitled, if he can, to credits, on these accounts, or either of them.
" Decree reversed, and appellant directed to pay to the appellee, as the party substantially prevailing, his costs by him about his defence in this behalf expended. And it is ordered, that the cause be remanded to the said court of chancery to be proceeded in upon the principles, and for the purpose aforesaid, and also for the purpose of allowing the appellee interest on the principal sum, which may be found due to him, to the time of payment."