Voorhies' ex rel. Cappel v. Mulhollan , 3 Mart. (N.S.) 70 ( 1824 )

Martin, J.

delivered the opinion of the court. The plaintiff sues on an obligation of the defendant, originally given to Voorhies, and by him transferred to Cappel.

The defendant did not deny the obligation but alledged that Voorhies owed him a large for that he, Cleveland and the defendant purchased together a tract of land for 1,106 dollars. That the defendant paid two-thirds of the sum, &c. Further, that the plaintiff theretofore sued the defendant for the same cause of action, and the latter had judgment.

There was judgment for the defendant, and the plaintiff appealed.

M‘Cummin deposes that he had a twelve months bond, which he received from the sheriff of Avoyelles, subscribed by Voorhies for 700 dollars-which sum Voorhies paid the sheriff, and the sheriff to the deponent, in February, 1822.

Cleveland, the sheriff, deposed he understood from Voorhies that the obligation sued on was given in part payment of two negroes sold by him to the defendant—that Voorhies was the defendant’s surety in a twelve month bond for 1106 dollars; in December, 1820, the defendant gave his part of a note for 3600 dollars, the joint property of Voorhies, the defendant and deponent, and the obligation now sued on, for the said slaves; Voorhies failing to get payment of the note sued Wells, from whom it came, obtained a judgment, which remaining unsatisfied, he sued the present defendant and failed. Voorhies then sold the claim to R. Martin, for a tract of land and a note for 600 dollars—for which he has judgment; the witness knows nothing about the bond, but what is here related. He received 833 dollars 33 cents from Voorhies, as his share of the $3600.

The record of Voorhies suit against the present defendant was introduced.

In this latter suit the plaintiff failed. The statement of facts shews, the record of the suit Voorhies vs. Wells as read: that Cleveland deposed that he, Voorhies and Mullholland, bought in partnership a tract of land for $1106, giving a twelve month bond, which is yet unpaid. The deed was given to Mulholland, and Voorhies became his surety. Mullholland sold the land to Wells for $3600, and received the obligation and papers referred to in the record of the suit Voorhies vs. Wells. On receiving an assignment of that obligation. Voorhies paid the deponent the third of the profit this speculation, $833 33 cents, and gave Mullholland two negroes and his note for $500—Mullholland acted as the agent of all the parties in making the sale of the land to Wells, and receiving the obligation for $3600. Voorhies assented to the sale. The deponent understood the draft given in settling the concern is for a $2494.

It appears clearly that the note now sued upon—and the $883 33, to which Mullholland was entitled as his share of the profits in the land speculation, constituted the price of two negroes, sold to him by Voorhies, which was claimed by the latter, and made part of the $3,600, the whole amount of Voorhies’ claim.

In the said suit Voorhies’ claim for the $500 now claimed was considered and disallowed, and if it was improperly so, he ought to have appealed—but the judgment unappealed from constitues the res judicata alleged by Mullholland.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed, with costs.

Bullard & Boyce for the plaintiff, Thomas for the defendant.