Duncan research files of
Platte Co. MO Marriage Records, County Recorder's Office, to 1870 (from Lu Durham 3/1987)
Carrie E. Duncan of Camden Point to George W. Shinn of Lathrop, at Camden Point, 17 Feb. 1886, Geo. W. Everett, Min.Gos. D-345
Nelson Duncan to Edith Ellis, 17 Dec. 1843, A-83
Martha Duncan to Charles C. Misener, 22 Dec. 1842, A-62
Perry A. Duncan to Susannah Butler, 1 Feb. 1849, A-178
R.R. Duncan to Elizabeth Ann Rallston, 19 May 1842, A-53
Sarah Duncan to James Arnold, 10 June 1851, A-214
Theodore Duncan to Henrietta P. Johnson, 19 May 1853, in town of Parkville, A-279
Joseph Duncan to Amanda M.F. Clardy, 25 Sept. 1856, A-368
Elizabeth Duncan to Samuel Pitts, 27 Nov. 1851 (LD: or 1852), A-261
Lucy E. Duncan to Geo. W. Field, 14 Feb. 1854, A-290
Mary Ann Duncan to James M. Browning, 7 Dec. 1854, A-319
Nancy B. Duncan to Wm. R. Foster of Buchanan Co., 8 Feb. 1868, B-260
Camilla Duncan to James R. Dulin, 5 Jan. 1870, B-306
Dr. R.B. Duncan to Sarah Eliza Stone, 26 April 1874, B-431
Edwin Duncan to Celia E. Newman, 17 Dec. 1874, B-463
Monin F. Duncan (f) to A.J. Roy near Camden Point, 13 March 1872, B-371
Mildred Duncan to G.C. Ransdall at bride's home, 23 Jan. 1873, B-391
Molly E. Duncan to Andrew Cox (LD:?), 1 Aug. 1873, B-405
Bettie J. Duncan to James Wingo, 23 Dec. 1874, B-466
Mary J. Duncan to Wilson C. Butts, 29 July 1875, B-480
Wm. Duncan to Hannah Triplett, 2 Feb. 1858, B-30
Virginia A. Duncan to E.R. George, 15 March 1857, B-11
Mary Duncan to George Yoakum, 29 March 1857, B-17
Mrs. Hannah Duncan to Thos. Trueman both of Weston MO, 20 Oct. 1858, B-37
Elizabeth S. Duncan to Robert N. Brown at residence of Berry S. Duncan, 13 March 1862, B-104 (LD: Robert N. Brown son of Samuel and Susanna Brown who came to Platte Co. in 1837).
Ann Duncan to Leman/Jerman Trent, 23 Dec. 1863, B-137
Richard F. Duncan to Sarah A. St.John, 21 Dec. 1859, B-73
Mary Jane Duncan to Perry Lewis, 28 Jan. 1866, B-188 Children: George, Mary, Elizabeth, and Perry of African dissent (LD: sic)
Nancy A. Duncan m. Frederick Krause, 25 Sept. 1866, B-213
Isabella Duncan m. Marcellus Stallard, 27 Dec. 1876 at residence of bride's father, John R. Duncan, B-521
James Dunkin to Jemima Bowman, 4 Aug. 1883, D-171
Joseph Duncan to Laura McMillan, 6 Nov. 1880, C-188
Lucy E. Duncan to Alonzo Drais, 29 Jan. 1890, E-161
Lucy Harrison Duncan of Rappahannock Co. VA to Thomas A. Ramey of Warrenton, Fauquier Co. VA, at home of John R. Duncan, 3 Jan. 1883, D-134 (LD: Lucy was dau. of Benjamin Harrison Duncn & Sarah Louise McCormack)
Double ceremony with:
Helen Adelia Duncan to John Dudley Buchanan, 3 Jan. 1883, at home of bride's parents, D-134 (LD: Helen was dau. of John R. and Mildred Jane (Duncan) Duncan; John was son of John and Eleanor (Ballinger) Buchanan; my grandparents)
Robert L. Duncan of Chicago [Cook Co. IL] to Grace M. Meads of Platte City, 12 Nov. 1890, E-216
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Platte Co. MO Probate Index (FHL film 988,732)
John Duncan, admr. Hiram Stephenson, letters 8/6/1839, settlement 8/2/1841
Frederick Duncan (not copied)
Others after 1850 not copied; we have information
Platte Co. MO Probate Records (from Lu Durham 3/1987)
John Duncan, d. without will; inventory filed 5 Sept. 1839; Probate 2 Aug. 1841. Bills for purchasers made in 1837 from Wilcoxin & Co., Carrolton, MO. At sale 5 Sept. 1839, items bought by Elizabeth Duncan, Davis Duncan. Left wife Elizabeth and children: Williamson (Will Co. IL), Tilford, Adeline, Nelson, Davis, Martha, Samuel, Mary, Susan Stephenson (Clinton Co. MO), Hiram Stephenson. Adm. failed to appear to settle estate. Sheriff of Clinton Co. couldn't find him. Box 55. (LD: probably husband of Susan) (MAD: one Hiram Stephenson mar. Susan Duncan 8/17/1837 Will Co. IL; ?? Williamson Duncan in 1850 Posey Co. IN census, Tilford Duncan in 1850 Will Co. IL census, Nelson Duncan in 1850 Clinton Co. MO census; from ? Mercer Co. KY; see 1850 Andrew Co. MO census for widow Elizabeth)
Frederick Duncan, will dated 2 Sept. 1843. To 3 oldest brothers Edward, Eldridge, Madison, all of his estate except trunk and clothing to Randolph Stallard. Brother Edward to be admin.; wit. Benjamin Sedwick and Benjamin Holland. Probate 2 Oct. 1843, exec. Edward H. Duncan, securities James M. Fulkerson and Benjamin Holland. May 7, 1844, money sent to VA by Wm. Bywaters for Eldridge G. and James M., legatees. July 1847, receipt from Eldridge G. for money recd. from Edward P. through hands of Mary Ann Duncan. Also 1847 receipt for fee for collecting a debt owed Frederick in Columbia, MO. Box 55. Will Book A, pg.42. (LD: son of Frederick Duncan & Susanna Stallard of Fauquier Co. VA)
James Duncan, will written 22 May 1874, probate 18 Jan. 1878. Wife Sally; children: Benjamin, Elizabeth Jane, Joseph, Margaret Thomas, Judy Amanda, Mary Ann. Box 55.
John R. Duncan appointed guardian of the minor children (Sandford, Sarah Catherine, Hiram G., Mary Ann) of Marshall Duncan "late of Rutherford Co. TN, deceased". May 6, 1845. (LD: John R. Duncan's wife, Mildred Jane, was the oldest child of Marshall Duncan)
Nancy D. Duncan; probate Jan. 8, 1890. Children: Mounen F. Ray, Edward D., James B., Lucy E. Drais. Complete inventory of house and farm equipment. Box 53.
July 3, 1875. Court appoints James M. Browning and Reuben Browning (security) guardian of Florence Duncan, minor child and heir of Wm. Duncan, deceased.
LD: When the estate of Mary Ann (Polly) Garner Duncan (widow of Marshall) was settled in Platte Co. in 1883, her children were scattered: Mildred Jane Duncan in Platte Co. MO; Wm. Arthur in Clinton Co.?; Robert Lewis in Scott Co. AR; James Marshall in San Francisco, CA; John Sanford in Platte Co. MO; Sarah Catherine deceased -- her daughters Medora Arnold in Whitman Co. WA Territory, Martha Arnold with her father James Madison Arnold in CA, Mary Catherine Arnold living with aunt (Mary Ann Duncan Browning) in Plattsburg, MO. Hiram Garner Duncan in Whitesboro, Mendocino Co. CA; Mary Ann Duncan m. James M. Browning, lived in Plattsburg MO after 1881.
Platte Co. MO Probate Court Records (from Dorothy Kincaid 3/1987)
Tuesday, May 6, 1845: Now at this day comes John Sandford Duncan, Sarah Catherine Duncan, Hiram G. Duncan, and Mary Ann Duncan, minor children and heirs of Marshall Duncan late of Rutherford Co. TN deceased, and make choice of John R. Duncan for their guardian. Whereupon it is ordered that John R. Duncan be appointed guardian upon filing a bond for $600; bond filed with Edward P. Duncan and Benjamin Sedwick securities.
Bond of John R. Duncan, principal, and Edward P. Duncan and Benjamin Sedwick as securities, 6 May 1845, to State of MO for benefit of John Sandford Duncan, Sarah Catherine Duncan, Hiram G. Duncan, and Mary Ann Duncan, minor children and heirs of Marshall Duncan late of Rutherford Co. TN deceased, $600; that John R. Duncan was appointed guardian of the persons and estates of the said (minor children)
Platte Co. MO Probate Records; original wills (from Lu Durham 3/1987)
Probate Judge's Office, Platte Co. MO, Box 55:
Will of John R. Duncan of Platte Co. MO, being in usual health; beloved wife Mildred J. Duncan and seven children Camilla Tharp, Mildred Wilkinson, Helen Buchanan, James L. Duncan, William M. Duncan, John S. Duncan, Edward Lee Duncan; make all children equal, considering advancements made to them in money and land, find I have now the sum of $7260.25 for each child, and I hope, in a few weeks, to equalize my children by deeds or by money. Balance to wife during natural life, at death distributed equally to said children. Dated 24 Oct. 1888; wit. William C. Wells, William Chesnut, Wm. Paxton. (no probate date shown; this is copy of the original handwritten will)
LD: John Randolph Duncan, b. April 25, 1821 Culpeper Co. VA; d. Sept. 2, 1902, Camden Point, Platte Co. MO; mar. Jan. 19, 1843, Culpeper Co. VA to Mildred Jane Duncan, b. March 2, 1821 Culpeper Co. VA, d. Jan. 24, 1911, Camden Point, MO.
Will of Mary Ann Duncan, of town of Camden Point, Platte Co. MO; my son William A. Duncan one equal undivided 8th of all estate; son Robert L. Duncan 1/8; son James M. Duncan 1/8; son Hiram G. Duncan 1/8; son John S. Duncan 1/8; dau. Mildred Jane Duncan 1/8; dau. Mary Ann Browning formerly Duncan 1/8; my granddaughter Medora Kincaide one equal undivided 24th, granddau. Martha Arnold 1/24, granddau. Mary Catharine Arnold 1/24, the last three named persons being daughters of Sarah Arnold formerly Duncan who has departed this life. Dated 2 May 1873. Witness S.C. Woodson and J.W. Ewing of Platte Co. MO. Proof of Will: 1 May 1887, proved by oath of James W. Ewing and Stephen C. Woodson.
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Original Land Grant Map, Township 54 North of Range 34 West; Platte Purchase 1836, Platte Co. MO (from Dorothy Kincaid 3/1987)
Section 22: Xury O. Duncan, Sept. 3, 1843, SE 1/4
Section 23: Robt. Duncan, Sept. 3, 1843 NW 1/4; Perry A. Duncan, Sept. 5, 1843, NE 1/4; William Bell, Nov. 15, 1843, SW 1/4; Wm. McGee, Nov. 22, 1845, SW 1/4
Section 24: William Bell, 40-?, June 22, 1843, SW 1/4 (has River running through parcel.
Platte Co. MO Deeds (from Lu Durham 3/1987)
LD: The following do not include the many entries for Edward Pendleton Duncan and his youngest brother, John R. Duncan, my gr-grandfather. Another brother, Frederick Jr., came to Platte Co. too, but died in 1843 unmarried.
B-321: 3 April 1844, William Duncan to Jacob Cox, sorrel filley.
B-336: 14 Oct. 1843, Elizabeth Duncan to James Gabbert of Bartholomew Co. IN, $1200, NW 1/4 Sec. 5, T53, R35; land entered in the land office in Plattsburg by Duncan. Wit. George Gabbert, Nelson Duncan.
B-484: 2 Sept. 1844, Perry Absolom Duncan to Wm. Bell, S 1/2 of NE 1/4, Sec. 23, T54, R34, 80 acres, $2500.
B-487: 3 Sept. 1844, Robert R. Duncan and wife Elizabeth to Wm. Bell, $3000, E 1/2 NW 1/4 Sec. 23, T54, R34, 80 acres.
C-7: 5 Nov. 1844, Davis Duncan and wife Lucinda to Harry/Henry Underhill, $442, part of fractioned Sec. 13, S. of northern line of orig. military reserve in T5, R36, 46+ acres.
C-285: 24 April 1845, David L/T. Duncan to Hickman Readman, the land where said Duncan lives, ca 13 acres, $200.
C-132: 10 Feb. 1845, Geo. P. Duncan to Simpson Park, ca 20 acres, $150.
C-487: 15 Nov. 1844, Nelson Duncan and wife Edith to Abner Baldwin and wife Sarah, $450, W 1/2 NE 1/4 Sec. 9, T52, R35, 80 acres.
D-261: 3 March 1846, John Edmunsen and wife Louisa to Mary Ann Duncan, SE 1/4, Sec. 8, T54, R34, $1000, 160 acres.
D-597: 15 June 1846, John B. Collier and wife Joannah of Andrew Co. MO to Stephen Duncan of Clay Co. MO, 160 acres in Platte Co.
E-45: 7 Sept. 1846, Stephen Duncan and wife Nancy L. of Clay Co. MO to Robert S. Wear of Platte Co., E 1/2 SW 1/4 Sec. 16, T52, R33, $250.
E-184: 22 June 1847, Henry O. Duncan and wife Polly to Jonithan F. Forbes, SE 1/4 Sec. 22, T54, R34, $1600.
E-365: 19 March 1847, Benjamin L. Lampton and wife Mahala to Stephen Duncan of Clay Co., $89.34, 29+ acres.
E-366: 1 Nov. 1847, Stephen Duncan and wife Nancy L. of Clay Co. to John Gardner, $155.
E-698: 10 May 1848, Stephen Duncan and wife Nancy L. of Clay Co. to Caleb Magill, 28+ acres.
E-793: 30 March 1846, Edward P. Duncan and wife Francis to John R. Duncan, S 1/2 E 1/2 NW 1/4, Sec. 12, T54, R35, $100, 40 acres.
H-305: 10 Feb. 1845, George B. Duncan to John Lewis, land in T52, R34, $250.
I-221: 16 March 1852, R.R. Duncan and wife Elizabeth to James J. Daniel, W 1/2 NW 1/4 Sec. 23, T54, R34, 80 acres, $800.
I-267: 4 Dec. 1851, Mary Ann Duncan to John S. Duncan, SE 1/4, Sec. 8, T54, R34, $1920, 160 acres.
M-130: 8 July 1856, E---? Coffey to Robert Duncan, one negro girl named Hannah and her child Dick for $200 in notes owed Duncan. (LD: Notes were paid off 29 Dec. 1856, pg.380.)
N-56: 3 March 1857, John Freeland of Leavenworth Co., KS Territory, to James B. Duncan and Mournan Guthrie, 160 acres.
O-27: 27 Nov. 1855, Sheriff's sale to R.F. Duncan, 140 acres bought at sale at courthouse, $2036; land owned by St. John.
O-114: 28 Oct. 1858, mortgage to Richard F. Duncan.
O-159: 19 Oct. 1858, John S. Duncan and wife Mary Ann appoint James M. Browning attorney to sell 160 acres in Green Twp.
O-281: 8 Feb. 1859, Ezekiel S. Wilkinson and wife Maria of Johnson Co., KS Territory, to Mary Ann Duncan, Lots 1, 2, 3, 4, Block 18, in Camden Point.
O-305: 17 Feb. 1859, George W. Field to Richard F. Duncan, 35 acres formerly owned by David and Polly Tom and sold at courthouse.
O-313: 25 Jan. 1859, Stephen Duncan Sr. and wife Nancy L. of Clinton Co. to Andrew J. Barnett, $2075, 166+ acres.
O-338: 9 March 1858, James Richard Duncan deed for the firm of Withers and Cravens, merchants in "embarassed circumstances."
O-570: J.M. Arnold deed to M.A. Duncan. 18 Jan. 1859, Whereas Mary Ann Duncan did on or about the 1st day of Dec. 1851 give to my wife (her daughter) a negro girl about 8 or 9 yrs of age named Tempa and whereas no instrument of writing was given to establish such gift and Sarah C. Arnold having died on 25 May 1857 and left 3 daughters, viz: Medora Arnold, Martha Arnold and Mary Catherine Arnold, and now for the purpose of carrying out the intention of said Mary Ann Duncan, for love and affection I bear my three children, give to 3 children said negro girl Tempe and her increase a slave for life about 16 yrs of age. /s/ James M. Arnold, wit. Mary A. Browning, James M. Browning. (FHL film 988,445)
P-194: 5 April 1857, Stephen Duncan and wife Nancy L. of Clinton Co. MO, to George Collins of Clay Co., 300 acres in Platte Co., $4800. Land contains burying ground.
Q-588: 11 July 1862, Perry A. Duncan and wife Susannah mortgage property to Lawson Maurey and James Drace. Signed by P.A. Duncan, Joseph Ralston and Sultana C. Bell.
Q-594: 3 June 1862, James B. Duncan and wife Nannie D., $1200, to Mouman Guthrie, 600 acres.
Q-627: 17 Oct. 1862, Perry A. Duncan to Platte Co., 90 acres for the use and benefit of the inhabitants of Congressional Township 52, Range 34.
R-333: 9 May 1864, C.W. Moreland and wife Matilda to Richard Duncan, $1000, land in Sec. 22, R34, T54.
S-469: 18 Jan. 1866, Richard Bywaters and wife Julia to R.F. Duncan, $4000, 160 acres.
S-560/2: 10 March 1866, Milton Darnell and wife Mary B. to James Duncan of Clay Co., 102 acres.
S-579: Mortgage; 30 March 1866, James Duncan of Platte Co. MO for $500 paid by Eleven Thatcher of Clay Co. MO, W 1/2 SE 1/4 Sec.35 T53 R34, 80 acres, and lot at NE corner NW 1/4 Sec.1 T52 R34, 22 acres; that James Duncan on 12 March 1866 made note to Eleven Thatcher for $500 at 10% interest, this deed to secure payment. Note in margin: Satisfied 5 Feb. 1868. (FHL film 988,449)
T-16: 6 July 1865, Mary Ann Duncan to Nancy Thomas, one house and Lots 1, 2, 3, 4 in Block 17, Camden Point.
T-346: 13 Feb. 1867, Richard F. Duncan and wife Ann to Jacob Hacket, 39 acres.
U-132: 14 Nov. 1865 (MAD:?), sheriff on 22 Dec. 1865 seized estate of Nancy Kay, Lots 4,5,6,7 in Block 16 and Lot 1 in Block 4 in Camden Point; sale at courthouse 6 March 1866 to Mary Ann Duncan, highest bidder, $805.
U-141: 3 Feb. 1868, David M. Bell and wife Hannah Elizabeth to John R. Duncan, $2000, W 1/2 SE 1/4 Sec. 23, T54, R34; also 2 acres of E 1/2 off W side of the E 1/2 of SE 1/4 of Sec. 23, T54, R34; 82 acres.
U-278: 15 Nov. 1867, John R. Duncan judgment against Wm. Rapton; S. 80 acres of NE 1/4 Sec. 23, T54, R34; 20 acres off S end of W 80 acres of SW 1/4 Sec. 23, T54, R34.
V-73: 13 March 1859, Wm. St. John and wife Leticia to Richard F. Duncan, $600, 20 acres more or less.
V-247: 14 May 1869, Agnes E. Duncan, single and unmarried, to Va. A. George, Susan F. George, Richard F. Duncan, James B. Duncan, and Edward W. Duncan, for $2457, NW 1/4 of Sec. 7, T54, R34 (more not copied).
V-540: 17 April 1855, Wm. W. Chappelear and wife Elizabeth to Mary Ann Duncan, Lots 1,2,3,4 in Block 17, Camden Point, $450.
1-150: 23 Sept. 1867, Chesley W. Moreland and wife Matilda to R.F. Duncan, 40 acres, $1200.
1-214: 3 Feb. 1868, James Duncan and wife Sarah to Wm. E. Price, $3500, 100 acres.
1-230: 18 Feb. 1868, Thomas E. Park and wife Mary E. to James Duncan, 120 acres N. of state road from Liberty to Platte City, $4400.
1-581: 16 Sept. 1869, James N. Rupe and wife Mary S. to John R. Duncan, E 1/2 of E 1/2 of SW 1/4 of Sec. 23, T54, R34, 40 acres, $930.
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"Reports of cases determined in the Supreme Court of the state of Missouri from 1845 to 1846" by Louis Houck, Consellor at law, Vol.IX, pgs.109 to 111; ("Missouri Reports") Vol.9, pgs.176 to 180 (California State Law Library, Sacramento, 1/2004)
LINDSAY v. MOORE; Supreme Court of Missouri; 9 Mo. 176; January, 1845, Decided.
Error to Platte Circuit Court.
(opinion) TOMPKINS, J. Benjamin D. Moore brought his action of assumpsit in the Circuit Court of Platte county, against James Lindsay, and obtained a judgment against him, to reverse which Lindsay brings the cause into this court by writ of error. On the trial of the cause Moore, the plaintiff below, and appellee here, gave in evidence an account for goods charged to be sold to Lindsay & Duncan, by Kenneth Mackenzie, a merchant of St. Louis; and to prove the account he read in evidence the deposition of one John Cochran, who stated that he knew both the plaintiff and defendant in the action; that he was a clerk in the house of Mackenzie when the merchandize in the annexed bill was sold, and that he continued as clerk in said house till the month of October, 1843, and that he knows that the merchandize charged in the said bill, was purchased by the defendant in this case, and delivered to the defendant; and that the several credits stated in the said account, are correct, and that the payments were made by the persons therein named, and that Benjamin D. Moore has settled the balance of said account, amounting to the sum of one hundred and sixty-four dollars and twenty-eight cents. The deponent further stated that at the time of the purchase of the goods aforesaid, Lindsay, the defendant in this case, brought to the said Mackenzie a letter of guaranty, annexed to said depositions, and upon the faith of said guaranty, the goods were sold to Lindsay and Duncan, the said Lindsay being the party defendant in the above entitled cause. The letter of Moore to Mackenzie, above referred to, states some things complimentary to Lindsay, and recommending him as a good customer to Mackenzie, the writer, Moore, promises to be responsible to Mackenzie for three or four hundred dollars for Lindsay, provided he paid Mackenzie "down" (meaning in cash), some hundred and fifty dollars, or thereabouts. The defendant objected to the reading of the deposition, assigning for reason that there was no proof that the defendant had notice of the time and place of the taking, and because the testimony was irrelevant. The court overruled the objection, and the defendant excepted to the decision.
The defendant, Lindsay, appellant here, gave in evidence that in 1839, about the time of the date of the letter of the plaintiff, Moore, above-mentioned, the said Moore and one Linn were doing business in partnership, as partners, in Platte county, as merchants, and that Lindsay, the defendant was about the same time doing business in the store of Moore & Linn, about three or four months, and that Duncan, a man in the employment of Moore & Linn, boarded with Lindsay, the defendant, about three or four months; that Linn, of the firm of Moore & Linn, also boarded with the defendant some time, perhaps two or three months.
It was further in evidence, that the services of Lindsay, the defendant, as clerk of Moore & Linn, were worth $25 per month; that the board of Linn, of the firm of Moore and Linn, was worth $1.50 per week, and that Lindsay settled the business of the firm of Moore & Linn, and that his services in that capacity were worth $17. Lindsay also offered in evidence a receipt of the plaintiff, dated 29th September, 1839, for $500, for the purpose of paying to Chouteau & Mackenzie $200, and the balance to another house. This was excluded, and the exclusion excepted to. No other evidence was offered.
The plaintiff, Moore, prayed the following instructions: 1. If the jury believe from the evidence, that the plaintiff, Moore, paid $164.25 for the use of the defendant, then they will find that amount in damages for the plaintiff. 2. That the jury will disregard, and exclude from their consideration, all the evidence that has been offered by the defendant in relation to his services for Moore & Linn, as also all the evidence in relation to boarding Thomas Duncan for Moore & Linn. These instructions were objected to by the defendant, and the court overruling the objections, its decisions were excepted to by Lindsay, the defendant, appellant here.
The court then gave for the defendant the instructions following, to-wit: 1. Unless the jury believe, that the plaintiff paid Mackenzie the money before the commencement of this suit, they will find for the defendant. 2. Unless they believe that the plaintiff paid Mackenzie the money on the account, they will find for the defendant.
The court then gave the instructions following, viz: 1. If the jury believe from the evidence that the firm of Lindsay & Duncan bought the goods of Kenneth Mackenzie, then they will find for the defendant. 2. That the jury must be satisfied that the defendant bought the goods of Kenneth Mackenzie, on the faith of the letter of guaranty, and that he paid one hundred and fifty dollars or thereabouts, at the time the goods were bought and delivered to him, or they must find for the defendant.
The defendant then moved to set aside the verdict, and for a new trial, for the reasons following: 1. Because the verdict is contrary to evidence. 2. The court misinstructed the jury for the plaintiff. 3. The court committed error in refusing the defendant's instructions. 4. The court committed error in admitting the plaintiff's evidence, and in excluding that of the defendant.
The sum of the evidence given by the plaintiff is that the appellant, Lindsay, defendant below, on the credit and responsibility of Moore, the plaintiff, obtained a credit for $600 in goods. These goods are charged in the account to Lindsay & Duncan, at the request, in all probability, of Lindsay himself; for Lindsay to get the credit of Moore's recommendation, brings and delivers Moore's letter, and received the goods from Mackenzie. If Lindsay chose, as is probable, to have those goods charged to himself and Duncan, Mackcnzie, who consented so to charge them, would consequently be bound to sue Lindsay and Duncan; but Moore, who gave Lindsay his credit with Mackenzie, and who made himself liable to Mackenzie, could not, by Lindsay's act be made to lose his remedy against Lindsay alone, and compelled to sue Lindsay and Duncan. But it is contended that this evidence is not relevant, and that the defendant did not have notice of the time and place of taking the depositions.
First then as to the notice. It is not stated in the bill of exceptions that the plaintiff, Moore, did not give the defendant the requisite notice. If that fact had been stated, the judge of the Circuit Court might have refused to sign the bill of exceptions. But the defendant, Lindsay, has objected to the reading of the deposition, because, as he says, there was no proof that he had received notice of the time and place of taking, &c. The Circuit Court might have had before its eye the proof, and we are bound to believe that all its acts are correctly done, until the contrary appears. If the defendant had made the statement that there was no such proof, then the judge, by signing the bill of exceptions, would have admitted the correctness of his statement.
The second objection to the admission of this evidence, is absolutely futile. For if on the credit of Moore, he, Lindsay, obtained the credit in September, 1839, and in 1843, Moore, who was responsible for him, paid the balance due, he must be presumed to pay it at the request of Lindsay, for in such a case the guarantor ought not to be compelled to wait till he is disgraced by the suit of the creditor. Nothing, then, can be more relevant than this evidence.
But the defendant, appellant, contends that his evidence was erroneously excluded. He offered in evidence as an offset to Moore's separate demand against him, some joint demands of his own against Moore & Linn, and Linn the partner of Moore. This evidence was inadmissible, for the statute gives the right of set-off in those cases only where the suitors are mutually indebted to each other, and the receipt which he offered in evidence was for money to be paid to Chouteau & Mackenzie, when he, Moore, was suing for money by him paid to Mackenzie alone. This money, purporting to be received by Moore, to be paid to Chouteau and Mackenzie, he could by no means be permitted to pay to Mackenzie, and it ought not, therefore, to have been allowed to be given in evidence against money paid for him by Moore to Mackenzie. But indeed, if this money for which this receipt was given by Moore, was intended to be paid by Mackenzie in satisfaction for these goods, and the receipt was by mistake taken for money to be paid to Mackenzie and Chouteau, then it devolved on Lindsay to prove the mistake. But such proof might not have suited Lindsay's purpose; for it appears from the account sued on, that Mackenzie did, after the date of this receipt, give Lindsay a credit for money paid him by Moore to Lindsay's use, for two sums of money amounting to two hundred dollars. But if Lindsay did pay to Moore two hundred dollars for the use of Chouteau & Mackenzie, as this receipt seems to show, and Moore had not paid it over, then Lindsay must resort to his action against Moore for this breach of trust. It cannot be set off against another demand, and in no event can it be set off till it is proved that Moore has not paid it according to his undertaking. From the evidence given in the cause, we are left to conjecture that Lindsay wished to be credited twice for the same sum of two hundred dollars.
It does not appear from the record to be true, that the court refused to give the instruction asked by Lindsay, on the contrary, the court voluntarily instructed the jury for the defendant, and in these instructions evinced more sagacity, than Lindsay did in his own behalf. The judgment is affirmed.
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