Cooke v. Simms

<p>In an action on the case, brought by Simms in the Hustings Court of Alexandria, against Cooke; the declaration contained four counts: The first charged, “That the defendant made his certain writing subscribed with his hand, in the words and figures following, to wit: Alexandria, January 12th, 1792, Whereas Jesse Simms, of Alexandria, has this day given me Ms obligation promising to assign, transfer and deliver to me or my order, on the fifteenth day of June next ensuing, the sum of five thousand dollars of the funded debt of the United States of America, bearing an annual interest of six per centum, commonly called six per cent, stock, Ido hereby promise, on receiving of the said sum of five thousand dollars of the funded debt of the United States of America, bearing an annual interest of six per centum, agreeably to Ms said obligation, to pay the said Jesse Simms, or Ms order, the sum of six thousand Spanish milled dollars, or the value thereof in gold, as witness my hand.</p> <p>STEPHEN COOKE.</p> <p>Witness, James Gillies.”</p> <p>“ And in fact, the plaintiff saith, that he offered to perform all things on his part necessary to be done and performed.” The second count was for money laid out and expended, by the plaintiff, for the use of the defendant. The third, for money had and received by the defendant to the use of the plaintiff. The fourth count charged, that the defendant, in consideration that the plaintiff “had given unto him an obligation of him the plaintiff, promising to assign, transfer and deliver to the said defendant or his order, on the fifteenth day of June, in the same year, the sum of five thousand dollars of the funded debt of the United States of ’America, bearing an annual interest of six pdr centum, commonly called six per cent, stock, undertook and faithfully promised,-on receiving the said sum of five thousand dollars of the funded debt of the United States of America, hearing an annual interest of six per centum, agreeably to the obligation aforesaid, to pay to the said plaintiff, or his order, the sum of six thousand Spanish milled dollars, or the value thereof in gold; and the plaintiff in fact saith, that he, on the said fifteenth day of June, in the year aforesaid, at the town aforesaid, offered^ to the said defendant the said sum of five thousand dollars of the funded debt' of the United States of America, bearing an annual interest of six per centum per annum, agreeable to the obligation aforesaid, and offered that the same should be assigned and transferred to him, or his order, and required him to perform his promise aforesaid; and the said defendant then and there refused to receive the said sum of five thousand dollars six per cent, stock aforesaid, and refused that the same should be transferred to him. ” The declaration then concludes with assigning a general breach, in the following words: “ Nevertheless, the said defendant, though often afterwards required to perform his said several promises aforesaid, and still doth refuse to perform them and each of them, to his damage three hundred pounds, and therefore he brings suit, and so forth.”</p> <p>The defendant prayed oyer of the writing, and then plead non assumpsit to the first, second and third counts; on which the plaintiff took issue: and, as to the first count, the defendant further plead, “that the plaintiff did not assign, transfer and deliver to him, or his order, the sum of five thousand dollars of the funded debt of the United States of America, bearing an annual interest of six per centum per annum, commonly called six per cent, stock, agreeably to his said obligation.” And, as to the fourth count, the defendant demurred, 1. Because the plaintiff did not alledge that he offered to assign and transfer the said 5,000 dollars of the funded debt at the Treasury of the United States, or at the Office of the Commissioner of Loans. 2. Because the tender set forth in the declaration was informal and insufficient. 3. Because it is not averred that the plaintiff had a right to assign and transfer the said 5,000 dollars of the funded debt.</p> <p>The plaintiff, as to the second plea to the first count • says, that he on the 15th of June, 1793, at the town aforesaid, offered to the defendant “the said sum of five thousand dollars of the funded debt of the United States of America, bearing an annual interest of six per centum, agreeable to the obligation aforesaid, and offered that the same should be assigned and transferred to him, or his order, and then and there required the defendant to perform his promise aforesaid; and the defendant then and there refused to receive the said sum of five thousand dollars six per cent. stock aforesaid, and refused that the same should be transferred to him.” Then follows an entry in these words: by e< consent of the parties, the declaration is amended to the fourth count, * and the demurrer filed withdrawn. ”</p> <p>The defendant demurred to the plaintiff’s replication aforesaid to the second plea to the first count. 1. Because it appeared by the plaintiff’s own shewing, that the offer to transfer was made at the town of Alexandria, and not at the Treasury of the United States, or at the Office of the Commissioner of Loans. 2. Because it appears by the plaintiff’s own shewing, that he hath not performed what he ought to have done, in order to entitle him to hiaction against the defendant. 3. That it is not averred, that the plaintiff had a right to transfer the said 5,000 dollars of the funded debt. The plaintiff joined in the demurrer. The Hustings Court decided in favor of the plaintiff upon the demurrer, and awarded a writ of enquiry of damages. The jury found 159/. damages; and the Hustings Court gave judgment for the same.</p> <p>The defendant appealed to the District Court, where the judgment of the Hustings Court was affirmed; and from the judgment of affirmance the defendant appealed to this Court.</p> <p>The case was argued at a former term, by Marshall, for the appellant, and Lee, for the appellee; when the judgment of the District Court was reversed: but, that judgment† was set aside during the same term, and the cause continued for another argument.</p>