Bumpass v. Harrolson

1 Minor 162

Opinion

Opinioh of the Court delivered by

Judge Crenshaw,

In this case, the only assignment of Errors necessary to ■be noticed is, “ That the Court erred in refusing to instruct “ the Jury that unless there was evidence of notice to de- •“ fendant from the plaintiff, that he had delivered the cot- “ ton to Berry according to the order, and of a request to “ execute the Bond according to defendant’s undertaking, “ the evidence was not sufficient to authorize a recovery.”

The evidence . introduced by the plaintiff proved that he refused to deliver the cotton on defendant’s order, alleging that it was not directed to him. He-delivered the cotton to Berry on his giving his Note with Barton, security : and after obtaining this security, he shewed his artifice, by declaring he had Berry, Barton and Bumpass all bound for the ¿Debt; and intimating, that for this reason he had refused to ■deliver the cotton on the first presentment of defendant’s order. This of itself was a discharge of the defendant’s liablity. The Court should have instructed the Jury, that if they believed the evidence, the law was in favour of the defendant,

McKinley, for plaintiff. Coalter, for defendant in Error.

"The judgment must be reversed, and the cause remanded

■Judge Ellis not sitting.