Cramer v. Shriner

Bowie, C. J., delivered the opinion of this court. This is an action of assumpsit, brought by the appellee against the appellant, on a promissory note dated the 6th of November 1855, for $2690.08, payable, at five months, to the plaintiff. The nar. contains two counts, a special count on the note, and an account stated; pleas, non-assumpsit and set-off. The note being admitted, the defendant offered in evidence five receipts, dated severally the li th, 18th, 16th, 17th and 18th of January 1855, for wketít delivered, and a receipt for corn, dated the 4th of March 1855, the aggregate value of which being proved, amounted to $901.15, for which the defendant claimed an allowance as set-off to the note, the execution of said receipts being admitted.

The plaintiff to bar said receipts, proved that Cornelius Shriner owned two flour mills, one called the “Linganore Mills,” the other the “Ceresville Mills,”- that the Linganore mills were carried on by Cornelius Shriner in his life time, and the Ceresville mills were carried on by Cornelius Shriner and the plaintiff, as partners, under the name of'E. A. Shriner & Co., until the deathof Cornelius Shriner in September 1854, and that the defendant had large dealings with said firm, and that since that time the Ceresville mills were carried on by the plaintiff, Edward A. Shriner, with whom, also, the defendant had large dealings. The plaintiff further proved by Daniel Titlow, a competent witness, that on the 28th of February 1855, a settlement took place between the plaintiff and defendant, and being asked whether said settlement was in writing, said it was, when parol evidence in relation to if, was objected to by the defendant. The plaintiff then offered in evidence, the book of accounts between Cornelius Shriner, in his life time, and the defendant, and produced the account of said Cornelius Shriner and defendant, contained in said book, and the receipt thereon written; ¹⁴⁵ and proved that the settlement referred to by him was that contained in said book, at. page 345, leger D. The accounts commence August 6th, 1853, and continue to March 1855, when a balance is thus struck: “Dr. Cr. 28th February, $3140.09 1464.00 By cash by check, 90.11 By cash per E. A. Shriner, 421.31 By his note a 30 days, 11,64.00 1st. settled. 3140.09 March 1855.—Received payment of all store, sadler’s bill to date, and all wheat delivered at Liuganore and Ceresville Mills to date. Georcíe Cramer.” The account runs five months after the death of Cornelius Shriner, and the books show no change in their title.

The plaintiff then offered to prove that the settlement on page 345, was a settlement of all accounts between the plaintiff and defendant} and also of ail accounts between defendant and plaintiff, as administrator of Cornelius Shriner, except as to a quantity of grain; to which evidence, the defendant objected, and his objection being overruled, the defendant excepted, which constitutes the first exception. There is no reference in the receipt to the account under which it is written, except that it specifies “store hill and saddler’s bill,” which are items of the account. No person being named in the receipt, and no entries of wheat on the account corresponding with those claimed by the defendant as a set-off, there could be no application of (he words, “and all wheat delivered at Liuganore and Ceresville mills to date,” without the admission of parol testimony. The receipts offered by the defendant would be covered and cancelled by that of Cramer, dated March 1855, if the latter can be shown to apply to the transactions, between the plaintiff and defendant.

This was a fact to be ascertained by the jury, from the entries on the ledger, the language of the ¹⁴⁶ receipt, and any parol testimony calculated to explain it The evidence of Mr. Titlow, in this exception, does not contradict or invalidate the settlement as between any of the parties, but rather sustains the