¶1 I was originally concerned in this cause for the plaintiffs, and feel the delicacy of the situation in which I am placed, in consequence of the disagreement between my brethren on the main subject of controversy between the parties. In the act of 1818 (Rev., ch. 963, sec. 8), supplementary to the act establishing this Court, there was a provision authorizing, in a case similarly circumstanced, one of the judges of the Superior Courts to occupy temporarily the place of the Judge who might deem himself incompetent to take a part in the decision.
¶2 But the repeal of this provision has been regarded as a legislative declaration, that no supposed bias of feeling or opinion should excuse a member of this Court from acting judicially upon any cause, when his aid is necessary to its determination. Thus circumstanced, I shall content myself simply with stating that, on deliberate and, as I trust, impartial examination of the case, I entirely concur with my brother Ruffin in the opinion which he has delivered.
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Case posture Posture THE pleadings, exhibits and proofs in this cause, which were very voluminous, presented substantially the following case: In the month of June, 1826, the defendants, Evans, Andrews, Runyon, and William
Ellison, associated themselves together as merchants and partners in trade, to commence business on the first of the ensuing month. The firm had two branches — one at Washington, in Beaufort, the books of which were kept in the name and style of Runyon, (285) Ellison Co., and of which William Ellison was the acting partner, assisted occasionally by Runyon. The other branch was established at Sparta, in Edgecombe County, the books of which were in the name and style of Evans, Andrews Co., and was managed by Evans and Andrews. Previous to the formation of this company, Evans and Andrews had been engaged in business at both those places in connection with Runyon and one Godwin Cotton, from which the two latter wished to retire. As a house at the shipping port of Tar River was necessary to the house above, it became an object to establish a new one at Washington. For some years previous, James and William Ellison had carried on an extensive business there, and were in good credit; and it appeared that both Mr. Evans and Mr. James Ellison had large separate properties and were esteemed rich. A. H. Van Bokkelin, one of the assignors of the plaintiffs, was the personal friend of all those parties, and had long been the factor and general agent of all their mercantile establishments, in New York, at which place, chiefly, they purchased merchandise, and to which they made shipments of produce. An agreement was made, early in 1826, between Evans and Andrews and the two Ellisons, that a connection should be formed between the house in Edgecombe and the house of the Ellisons in Washington, but upon what particular terms did not appear. Just before that time, Van Bokkelin, to whom James and William Ellison owed a considerable debt, had failed, and made an assignment for the benefit of his creditors. He was succeeded in business by R. M. White, the other assignor of the present plaintiffs, who had been his clerk, and to whom those North Carolina houses transferred their correspondence. This change in the business of Van Bokkelin was only nominal, for he continued to be substantially at its head, and some time after obtained a reassignment, and openly reassumed it in connection with White, under the name of Van Bokkelin White. In a letter, dated 6 April, 1826, addressed to Mr. White, Mr. Evens informed him of the proposed retirement of the persons who were then his partners in Washington, and desired him (286) to let Mr. Bokkelin know that we have taken the two Mr. Ellisons into company. We shall join stocks in July. It appeared that, after this, James Ellison preferred retiring, and Runyon agreed to purchase his interest in J. and W. Ellison's goods, debts and responsibilities altogether; and he went, instead of James Ellison, into the new firm first above mentioned, which commenced business on the first of July, and, as before stated, was conducted at Washington by Runyon
and William Ellison, though chiefly by the latter. The same two persons were to collect and pay the debts of James and William Ellison, that duty having devolved upon Runyon in connection with William Ellison in consequence of his purchase from James, and his covenant to indemnify him against the debts due from the said firm, the assets of which were about $24,000 and supposed to exceed its liabilities by $8,000 or $10,000. Immediately after this, William Ellison, in letters in his own name and that of Runyon, Ellison Co., assured White and Van Bokkelin that the change of the firm would not delay, but would expedite the payment of the old debts, and that remittances should be forwarded as soon as collections could be made, and he joined James Ellison in a request that he, James, should be discharged by the creditors, as Runyon, Ellison Co. had assumed the debts; but Van Bokkelin declined acceding to the request, because his assignees objected to parting from a responsible name. In July, and the subsequent months of that year, and for the next two years, produce to a large amount was shipped to New York in the name of Runyon, Ellison Co. Upon the first shipment received, Van Bokkelin requested, in a letter to Runyon, Ellison Co., to be advised whether the shipments in their name were to be passed to the credit of James and William Ellison. On 29 September, 1826, he again wrote to Runyon, Ellison Co., enclosing accounts of other creditors in New York of J. and W. Ellison, which had been left with him as their general agents, and said, If you wish us to pay, return them with your directions. To these two letters it did (287) not appear that any specific answers were returned. All the proceeds of the shipments were, therefore, passed to the credit of Runyon, Ellison Co.; but during the autumn and winter Runyon, Ellison Co. paid debts at home of J. and W. Ellison to a considerable amount, and drew successive bills on White in favor of the New York creditors of J. and W. Ellison, to the amount of $4,493.95, which White accepted and paid. In all the dealings of these houses, those in North Carolina made no cash payments, but all the remittances were in produce, of the proceeds of which the appropriation was made by bills. Every draft in favor of the creditors of J. and W. Ellison in New York, and every payment to the creditors at home were regularly entered to the debit of J. and W. Ellison in the books of Runyon, Ellison Co. , and the bills were duly charged in the accounts current, which were rendered every three or four months by White to Runyon, Ellison Co. Things were in this state when, in April, 1827, William Ellison remitted to Van Bokkelin the bill of Runyon, Ellison Co. on White for $5,000 in part payment of the debt of J. and W. Ellison to Van Bokkelin, and at the same time drew another bill on White for $492.30 in favor of
another creditor of J. and W. Ellison, which was paid. Both of the last bills were also charged in the books of Runyon, Ellison Co.; and in September, 1827, when Mr. Andrews and Mr. Runyon were in New York together, the accounts current of the houses under their several charge were delivered to them, respectively; and in those of James and William Ellison with Van Bokkelin, and Runyon, Ellison Co. with R. M. White (which were delivered to Mr. Runyon), the bills of April, with others, appeared; and that for $5,000 was stated therein to be on account of balance due A. H. Van Bokkelin by J. and W. Ellison. From that period, accounts current were rendered quarterly until the copartnership terminated, in the latter part of 1828 or beginning of 1829, and no intimation of any objection to these transactions reached the creditors from any quarter. There was no original (288) distinct agreement that Runyon, Ellison Co. should assume the debts of J. and W. Ellison, nor was there any evidence to show that Evans and Andrews knew of the bills being drawn on White in the name of Runyon, Ellison Co. in favor of the creditors of J. and W. Ellison, or that they in any manner sanctioned it, except what was inferable from the facts detailed above, and from proof that on one occasion Evans was seen at Washington, looking into the books of Runyon, Ellison Co. The bill was filed by the plaintiffs as assignees of Van Bokkelin and White, under their joint and several assignment, against the persons composing the firm of Runyon, Ellison Co., and against James Ellison, A. H. Van Bokkelin, and R. M. White, to charge, first, Runyon, Ellison Co. with all the debts of J. and W. Ellison, upon the ground that they had been expressly assumed; second, to recover the debts owing to Runyon, Ellison Co. to the assignors of the plaintiffs, upon the ground that the assignees could not sue at law. The first part of the case was disposed of by an agreement pending the suit, by which James Ellison undertook to pay all the debts of J. and W. Ellison due to Van Bokkelin and to White, except the sum of $5,000, the amount of the bill of exchange of April, 1827. This bill of exchange was charged by White to the debt of Runyon, Ellison Co., and was one of the debts professed to be assigned by him to the plaintiffs. Upon the second part of the case the court directed an account to be taken, and the commissioner made a report, in which he allowed the $5,000 as a debt due to White, and the defendants Evans, Andrews, and Runyon excepted to that item, upon the ground that the bill was drawn without their authority, and not for the benefit of Runyon, Ellison Co., and, therefore, did not bind them. They also excepted to the report because the commissioner had not allowed them as credits certain amounts due from Van Bokkelin and White to Evans, and also to Runyon, individually; and they excepted, thirdly, because they had been debited with the
sum of $555 paid to William Ellison for Van Bokkelin and White under their directions to pay it to Runyon, Ellison Co. after White (289) had notice of the dissolution of that firm. Source: CourtListener
