Oakley v. Crenshaw

Curia, per

There was no agreement to guaranty the sales of the tobacco by the Octavo; but merely to advance 600 dollars, before the sale of any part of this consignment, except the 4 kegs. The plaintiff would clearly he entitled, to recovery was it not for his payment of the balance, the 341 dollars 32 cents. On the 1st of February, 1816, the plaintiff wrote to the defendant, “ as soon as the funds of yours is received, you shall have prompt advice thereof and on the 16th of April, writing again, and alluding to his letter of the 1st of February, he says, “ Last evening, I received in part pay of note of Whitaker, which included yours among other sums. Although it would be but right that you should have only your proportion, yet I am desirous not to have the account stand open. Therefore you may draw for $341 32, &c.” This seems to me a final *253settlement and assumption of the debt due from Whit-alter. About this time, the plaintiff accepted a draft of Whitaker for'4000 dollars, and took counter security. If he did not intend to assume this debt of the defendant, he surely ought to have informed him. (Consequa v. Fanning, 3 John. Ch. Rep. 600.)

Judgment for the defendant.