Pennington v. Watson

*97This was an action of assumpsit in which judgment was confessed, subject to the opinion of the court as to the plaintiff’s right of action upon the following statement of facts and the annexed receipt.

“ There was no agreement to wait till the demands nma,-tioned in the receipt could be collected, unless the receipt import such agreement. All the claims mentioned in said receipt were collected (except the attorney’s receipt) and credited upon the note sued on ; and before the commencement, of this suit, the defendant Watson was informed, by plaintiff’s attorney, that he was unable to collect said demands (attorney’s receipt) and that he did not believe they could be collected, and offered to return the attorney’s receipt: whereup*98on the defendant Watson promised to be in Augusta in a few days, and that he would pay the amount due on the note. The notes mentioned in the 2d and 3d lines of the ¡¡receipt are still in suit in Columbia and these easts undetermined.'’ b', Ct.Uf'O‘1, Sign -7

HI r Hit UIU'Mi', A’. •Sh, lb of Henry W. Cobb peda r C-suit, t\v< nt,'-tire c died dobai - 1 crcd,.. oí ten date,! 1 Sih 1, Thomas H’m iy'9. Received of Thomas Watson, •eco'pt ior f.vo m-ies against the estate which are now in suit in Columbia Su-eno lor one hundred and thirty dollars and fits, besides interest, and the other for two hun-hhw interest, and on which notes there, is a. dollars and eighteen cents. — Also four notes ¡arch, 1628, and payable one day after (fate to ,,.i i.r Lci.tcl, ihi< o ior thirty dollars each, and one ior In ,r dolíais and ubiety four cents, — all which I am to hold as emían ml son mity for the payment of a note given by said T!> tim v.'atson on the 17th March, 1829, .payable one day after date to Isaac Brant or order for five hundred and ic.enty Cur g/-, uoilcss. As soon as I collect the first mentioned ii«í< s or u iidiHency thereof to pay the last-mentioned note (w ffeh hue 1 f’ci indorsed and delivered to Elizabeth I'emiingtoii) I g.ee to deliver to the said Thomas Watson the said Irst-n”.nth ned note and to pay him any balance that turn, be duo (o Him.'* Signed, “A. j. Miller, attoiney for E. P< rumr.tou *’

ibis case is inba.tííód without argument, and is indeed wary plain. It is m2 < e y to perceive on what ground the defendant can jcusonubl} expect the judgment of the court in his favor. The defence rests exclusively upon the above receipt. This could bar the plaintiff’s right to recover her debt but in two ways. 1st, That the notes and evidences of debt deposited with plaintiff’s attorney, had been received in satisfaction of plaintiff’s demand, or there liad been such neglect and laches of the \ iahiidi' in rey:d to 1 liem a- would in law amount to a ‘abM .-bon. "(My, Py an ¡'piecmcnt not to sue until tlw rat miu s :>o ntion; d in she iuro.pl could b.e collected. No lacla s w bait vc r is imputed to the plaintiff or her attorney : and so far from the m.tco and altóme}’s receipt? mentioned, 1,riving been deposited in ; Litis fas lion of, they are expressly declared to bens collateral security for, defendants’ note ; and a stipulation is entered into as to the manner of a||pying their proceeds when collected, which has been fully complied with, as far as collections have been made, and an. inability is shown to make further collections. ••

It is only the last clause in the receipt of plaintiff's attorney that cun in any way import an undertaking to abstain from suing upon the defendants' note until the securities can be collected; and the words used will by no means imply such an agreement, but the face- Haled, mid the b"f"nd-anfii’ prriini'i- to pet', utili a know;, ugc of facts show *99what he Understood by the undertaking in the receipt, and are conclusive of the case. Let judgment be entered for the plaintiff'.