Nusbaum v. Thompson's Executors

Ecclestox, J., delivered the opinion of this court. This suit was instituted by John P. Thompson against Adam Nusbaum, (the appellant,,) upon a promissory note dated the 1st day of May 1848, for $2000, payable the 1st day of April 1850, given by Nusbaum to John Myers, and endorsed or transferred by him to Thompson. Subsequent to the institution of the suit, Thompson’s death was suggested, And his executors James G. Hamner and MaryL. Thompson, were made parties, It appears from the evidence, that besides the note in dis» pute, a promissory note dated the same day, for $2000, payable on the 1st of May 1850, was given by Nusbaum to John Myers, and endorsed or transferred by him to Thompson, The chief matter in controversy, at the trial, was, whether the defendant could rightfully claim as a credit upon the note in suit, a receipt for $10(51, purporting to bear date the 25th of April 1849.

According to the testimony of E. H. Rockwell, the defendant called on him, about the 1st of April 1850, to make a calculation, from data then furnished by the defendant, for the purpose of ascertaining the balance due by him to Thompson upon the note then due. The witness thinks the defendant produced to him receipts of $1061, $300 and $500. The one for $1061, he thinks was dated the 5th of April 1849, and not according to its present date, the 25th of April. His opinion is, that the figure 2 before the figure 5 in the receipt, was evidently put in after the 5 was made.

He calculated the payment of $1061, as of the 5th of April 1849. He thinks the defendant told him to make a calculation to the 6th of April 1850. The balance due on the calculation so made by the witness was over $400. In December 1850, he made a calculation for Thompson, on the same note from data furnished by him, and the balance amounted to $421.66.

The witness supposes, that the data furnished him by the defendant, were identical with those furnished afterwards by plaintiff’s testator, ⁵⁶² Thompson. This the witness supposes, from the fact that the result of the calcula)Íon made by him for the plaintiff’s testator, in December 1850, corresponded with the amount ($421.66,) “which the plaintiff’s testator had endorsed as received on said note, due in May 1849, on the 6th of April 1850.” The witness recollects distinctly, that the receipt for $300, was produced by defendant; but does not distinctly recollect any others. “Does not recollect from seeing data furnished by plaintiffs’ testator to witness, in December 1850, what receipts or data were furnished to him by defendant, in April 1850. Only judges from concurrence of amount ascertained by witness on calculation for plaintiffs’ testator, in December 1850, with that endorsed on said note by plaintiffs’ testator, on the 6th April 1850, that the data furnished to