Fisher v. Willard

Where the general agent of the plaintiff received, in payment for the plaintiff’s goods sold, an order made payable to the bearer, which was dishonored, an action by the plaintiff on the order against the drawer.was maintained by the evidence of the agent alone.

Assumpsit against the defendant, as the drawer of an order on John Kimball to deliver to the bearer sixty-five dollars’ worth of best selected lowland cotton, at the market cash price, dated February 3d, 1814; with an averment of a request of payment on the next day, by the plaintiff, of Kimball, and of a refusal by him to pay, &c. There was another count, averring that Kimball had no funds of Willard, &c., and the usual money counts. Trial was bad upon the general issue, at the last April term in this county, before Putnam, J. The only evidence produced was the deposition of Joseph Richards, jun., the objection of the defendant’s counsel to its admission having been overruled by the judge. He testified, that he was employed by the plaintiff to drive a team for him, about the * 1st of February, 1814 ; and, in that occupation, carried a load of fish belonging to the plaintiff to the county of Worcester for sale ; that, on or about the 3d of that month, being at Fitchburg, he met with Willard at an inn, who told the witness, that he was about collecting a load of merchandise to go to the westward with, and that he should be glad to purchase some of the fish to carry with him ; that the witness agreed to sell him a quantity of fish, and to receive payment in cotton, for which Willard said he could give him an order, to be answered at Waltham; that on this the witness delivered him fish to the value of sixty-five dollars, and received from him the order declared on. There was proof that the order was presented to Kim-ball, and acceptance refused by him, because he had no funds of the diawer. A verdict was returned for the plaintiff; which was to be set aside, and a new trial granted, if the said deposition ought to have been rejected ; otherwise, judgment was to be rendered on the verdict.