Wheeler v. Souther

Decided November 15, 1849

Massachusetts Supreme Judicial Court · decided 1849-11-15

This action was brought by the payees against the drawer of an order, of which the following is a copy: — “ Mr. T. W. Herrick. Please pay to Messrs. Wheeler & Morton forty-two dollars, and charge same to the account of the house building on lot No. 16, on plan of Webster place, Newton, which is in your hands for sale. Newton, Dec. 23, 1845. Charles N. Souther.” The declaration contained the common money counts, and also a count on the order.

Decided 1849-11-15

Fletcher, J.

¶1There must be a nonsuit of the plaintiffs entered in this case, and judgment thereon for the defendant. The burden of proof is on the plaintiffs, and they have failed to sustain that burden, by any satisfactory proof of their claim against the defendant. There is no proof, that the order was ever presented to the drawer for acceptance or payment, and no evidence of any notice to the defendant of non-acceptance and non-payment. The order is not a negotiable paper, being payable out of a particular fund; there is no value expressed as received, and no promise to pay. The admission of the defendant of being indebted is quite too loose and uncertain, and better evidence, surely, might have been offered, if there was in fact a debt due. The plaintiff is bound to make out his claim satisfactorily, but fails to do so, and must thereupon fail to recover of the defendant