Cole v. Kerr

Ohio Supreme Court

Cole v. Kerr

1 Wright 675, 1 Ohio Ch. 675

DecidedAugust 15, 1834

StatusPublished

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Bluebook

Cole v. Kerr, 1 Wright 675, 1 Ohio Ch. 675 (Ohio 1834).

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Opinion

WRIGHT, J.

We have no evidence that any bill of particulars has been demanded of the defendant, or delivered to the plaintiff. If such be the case you must show the bill, that we may see if this claim is embraced in it.

As to the second objection, it is true that until the 1st of June, 1824, no statute in Ohio imposed any limit to the action of debton a simple contract: (3 O. 387.) That omission of the legislature, the present plaintiff has availed himself of to save his debt, tie must yield to his adversary the same law he exacts from him. If, in debt, the defendant cannot set up a bar, the plaintiff will not be permitted to interpose a bar against a demand of the same nature, under pretence that he might bring assumpsit for it. The liabilities of the parties must be regarded in the same light, and be either assumpsit or debt, as the plaintiff shall have elected to proceed.

The third objection is without weight when addressed to the court. It may furnish one ground of argument to the jury, to induce them to believe the first obligation cancelled, when the second was given. The objection is overruled.

The defendant then asked of a witness, if Cole was not insolvent in 1816, and from thence until 1819.

677] *WRIGHT, J. Under what circumstances the notes were originally given, or their collection has been delayed, it is competent to prove to the jury. If the obligor was solvent, it would be a circumstance from which, in connection with others, payment might be inferred — if insolvent, that might, on the contrary, excuse the delay in bringing suit.

The plaintiff in rebutting the defendant’s evidence, offered sundry receipts for money from the defendant to the plaintiff, dated before and since the date of the receipt from the plaintiff, given in evidence.

[701]*701WRIGHT, J. We have some doubt as to the admissibility of this evidence, but inasmuch as there have been many dealings between these parties, of long standing, and of their former relations as co-partners, we will admit it.

Verdict for the defendant.

Motion for a new trial overruled.

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WRIGHT, J.

We have no evidence that any bill of particulars has been demanded of the defendant, or delivered to the plaintiff. If such be the case you must show the bill, that we may see if this claim is embraced in it.

As to the second objection, it is true that until the 1st of June, 1824, no statute in Ohio imposed any limit to the action of debton a simple contract: (3 O. 387.) That omission of the legislature, the present plaintiff has availed himself of to save his debt, tie must yield to his adversary the same law he exacts from him. If, in debt, the defendant cannot set up a bar, the plaintiff will not be permitted to interpose a bar against a demand of the same nature, under pretence that he might bring assumpsit for it. The liabilities of the parties must be regarded in the same light, and be either assumpsit or debt, as the plaintiff shall have elected to proceed.

The third objection is without weight when addressed to the court. It may furnish one ground of argument to the jury, to induce them to believe the first obligation cancelled, when the second was given. The objection is overruled.

The defendant then asked of a witness, if Cole was not insolvent in 1816, and from thence until 1819.

677] *WRIGHT, J. Under what circumstances the notes were originally given, or their collection has been delayed, it is competent to prove to the jury. If the obligor was solvent, it would be a circumstance from which, in connection with others, payment might be inferred — if insolvent, that might, on the contrary, excuse the delay in bringing suit.

The plaintiff in rebutting the defendant’s evidence, offered sundry receipts for money from the defendant to the plaintiff, dated before and since the date of the receipt from the plaintiff, given in evidence.

[701]*701WRIGHT, J. We have some doubt as to the admissibility of this evidence, but inasmuch as there have been many dealings between these parties, of long standing, and of their former relations as co-partners, we will admit it.

Verdict for the defendant.

Motion for a new trial overruled.

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Bluebook (online)

1 Wright 675, 1 Ohio Ch. 675, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cole-v-kerr-ohio-1834.

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