Gerbier v. Emery , 2 Wash. C. C. 413 ( 1809 )

BY THE COURT.

This is a rule to show cause, why a new trial should not be granted upon the following grounds: First, that the clerk of the Bank of Pennsylvania ought to have • been examined as a witness, to prove the payment of Gerbier’s check, which, it is said, was given to reimburse the defendant the premiums paid by him on the insurance of the lumber shipped in the two vessels, as the property of the plaintiff; because, as the drawer of a check, after he settles his. account with the bank, is not supposed to keep it by him, a notice to produce it, in order to let in inferior testimony, is not necessary. Secondly, that the defendant was surprised by this objection. Thirdly, that the verdict was against the weight of the evidence, particularly in not crediting the defendant with the amount of the sales of his lumber, because Gerbier, Bailey & Go. had not collected it. That they had no right to sell on credit, particularly under the instructions to the plaintiff, which, it is said, amounted to a positive instruction to sell for cash.

As to the first and second reasons, although they were well founded in other respects, they would not be sufficient, in this case, to warrant a new trial, which could only be wished for, for the purpose of nonsuiting the plaintiff, by holding him to the strict proof of his contract, as laid in the declaration, against the justice of the case. And if we were, for these reasons, to grant a new trial, it would be upon the terms of permitting the plaintiff to amend, and to add a new count, so as to omit that part of the case which states a promise by the defendant, to deliver the lumber, clear of insurance; then, it is obvious, the new trial could be of no use to the defendant, on these grounds. The last reason might weigh with the court, if the defendant could avail himself of th? misconduct of Gerbier, Bailey & Co., in selling on credit, (if they were faulty for so doing,) so as to exclude from their account, the debit for those sums not collected. But, upon the, authority of Winchester v. Hackley [supra], we think that the defendant could not, at law, bring that subject into view. Rule discharged.