McLaughlin v. Simpson

Vol 23 P 111 - 234 Mathew McLaughlin vs. John Simpson filed 1831 Affirmed July 25, 1832

[right upper corner note] SC00027

1 Pleas had before the Honorable the Circuit Court of the Coun[ty] Dallas at the Court begun and held for said County in the Town of [Caha---] [rest of page bent over] on the first Monday of April to the 5th day of April in the year of our Lord one thousand eight hundred and thirty and of the Independence of the United States of America the 54th year. Present the Honourable Reuben Saffold Judge de The State of Alabama Dallas County to the Honourable Reuben Saffold Judge of the second Judicial Circuit of said State exercising Chancery powers. Your Orator John Simpson in his own right -and as Administrator ofthe Estate of William Read deceased shewith unto your Honor that in only 1823. William Read, Matthew McLaughlin & Your Orator, formed a mercantile copartnership under the firm and style of McLaughlin Read Simpson. They were to carry on business in the town of [Sela---][line ends, page torn/folded] Dallas County. The copartnership was to continue for nine yea[rs] [line ends, page torn/folded] Articles of Copartnership were drawn up embracing its princip[les][line ends, page torn/folded] & signed by the parties as well as orator recollected & they are be[lieved][line ends, page torn/folded] to be in the hands of McLaughlin & So Orator charged. The [line ends, page torn/folded] -tinued to deal in a general assortment of goods until [line ends, page torn/folded] no stipulation having been made for such a contingency which would authorise its continuence. Orator obtained letters of [a---][line ends, page torn/folded] -inistration on the effects of Read at the time of his death. The firm had a large amount of debt out standing & due to it by bond [line ends, page torn/folded] accounts, also a considerable stock of goods as well as some real property. In April 18?6 [ink blot], a sale of the goods and effects [line ends, page torn/folded] the concern was made as also afterwards of the real property. [No---] [line ends, page torn/folded] were taken for purchases which went to increase the joint [sto---][line ends, page torn/folded] The firm was at that time indebted in New York & perhaps elsewhere for goods purchased. McLaughlin had acted as the agent of [line ends, page torn/folded] made. In June 1826 being as he said about to go to New [York] [line ends, page torn/folded] where he would be called on & would have to pay the debts of [line ends, page torn/folded] he urged yours to make an arrangement which would [se---][line ends, page torn/folded] in the Court. This proposition was to take upon himself the [d---][line ends, page torn/folded] of all debts due by the firm in consideration of which & [line ends, page torn/folded]

2 [beginning of line missing, page torn/folded] in so doing. Orator was to make an assignment to him of the [beginning of line missing, page torn/folded][---ds] of the firm the ballance of which were after discharging the [beginning of line missing, page torn/folded] to be accounted for with Orator and paid over according to his [beginning of line missing, page torn/folded] the proportion of William Read. Urged by McLaughlin orator did execute in his favour a written instrument in effect about as stated. It was not an absolute transfer of anything but barely to give him control of the papers, so as to establish him to pay the debts of the firm, when he should go to New York and to secure him any payments he might make beyond the available means of the concern, if any such debts should be urged, all of the effects of the concern were then placed. He urged all the effects of the concern were placed under his control & to be collected & applied to [beginning of line missing, page torn/folded] debts of the firm McLaughlin did shortly after go on to New York, but without paying off the debts of the concern or taking them [beginning of line missing, page torn/folded] his own shoulders, he returned and brought or sent an an assortment of goods for himself; he having shortly after the death of William Read commenced a seperate mercantile business. [beginning of line missing, page torn/folded] return of McLaughlin from New York & in Novemeber or [beginning of line missing, page torn/folded] [---ember] of 1826 a difference occured between him and orator as to the amount due him McLaughlin by the firm. His claims were from ten to fifteen thousand dollars, to determine this matter in the most agreeable manner, orator proposed to leave it to an arbitration which was acceeded to by McLaughlin, a referance was made & the arbitrators by their award ascertained & fixed the debt to possess by the firm, at five thousand nine hundred & sixty six dollars. Orator could not consent that the books, bonds notes [beginning of line missing, page torn/folded] papers of the firm should any longer remain in the hands [beginning of line missing, page torn/folded] McLaughlin & it was agreed between him and orator they they would be placed in the hands of a Mr. Frances Douglass. He was in the employment of McLaughlin as a clerk and was new [beginning of line missing, page torn/folded] by McLaughlin as agent or reciever. Yet orator having full confidence of his integrity consented & agreed to his being the person Accordingly all the books, bonds notes and other papers of the firm were [beginning of line missing, page torn/folded] placed under the control of Frances Douglass & to be in his hands [beginning of line missing, page torn/folded] was about the month of December 1826 at the time a written instruction [beginning of line missing, page torn/folded] was drawn up & signed by McLaughlin & orator continuing

3 the terms of the agency & denoting the application of moneys collected by Douglass, which paper was placed in the hands of Douglass it is now in the possession of McLaughlin down to this period. McLaughlin acc -ounted to orator for all the moneys collected by him while he had the entire control of the Books Bond Notes &c And so far as Orator has yet ascertained he believed it was applied to the debts of the firm. Douglass continued in the discharge of the agency until April 1827. And during the period coll -ected for the firm or the survivors the sum of eight thousand six hund -red & ninety dollars. At this time Douglass intending to leave McLau -ghlin and reside at a different place though in the same town a difference arose between McLaughlin & Orator as to the destination of the Books Notes &c of the firm which ahd been in the hands of Douglass. Orator insisted they should still remain under his control which McLaughlin objected to. It was enjoyed by Orator by Orator or Douglass not to give up his control of the Books Notes &c Until some mutual arrangment could be made as to their disposition that such might be effected.Orator proposed to McLaughlin that he might select such Books Notes &c accounts from the whole papers as would be amply sufficiant to discharge any debt he might have against the firm yet due, and in addition such would secure him in the payment of all the debts due by the firm, and that as to the balance of the notes which should remain after such selection they should be divided & handed over one third to McLaughlin & two thirds to Orator his own and William Read's and Orator proposed for then to give bond to McLaughlin to pay over to him the amount of any note or account whi -ch could not be collected of those he might select, such were the terms proposed in substance & as near as recollected McLaughlin consented to them while orator was absent and preparing the papers & Bonds necessary to carry into effect the arrangment McLaughlin by some means obtained possession of the papers Bonds Notes & Books and everything left with Douglass & when Orator returned and prop -osed to execute the above stated stipulations, McLaughlin refused stating he now had the papers in his hands & would keep them or words to that effect. McLaughlin then took or rather had already taken into his hands all the Books Bonds Notes & accoutns and other papers of the firm & relating to it & so your orator charges This was entirely contrary to the consent of orator & McLaughlin

4 has ever since retained possession of the whole of them & still has all which may not have been collected at or about this time, however Douglass has accounted with McLaughlin of and concerning all moneys which had been collected by him as reciever for the firm & how the same has been applied by him the Books containg these accounts were likewise taked possesession of by McLaugh -lin. The amount collected by Douglass for the conern & for which he accounted with McLaughlin was about eight thous six hundred & ninety dollars & a large portion of this had been paid by Douglass to McLaughlin. At this time toward about first April 1827 McLaughlin took into his hands in the manner before stated Bonds Notes & accounts of the concern to the amount of about twelve thousand dollars and this orator charges at this time the whole debts due to the concern could not have amoun -ted to more than about eight or nine hundred hundred dollars inclusive of the debt due to McLaughlin and a debt due Will -iam Read of the $763.02/100 and so your orator charges. But of these things he cannot speak with absolute certainty. For since June 1826 he has has littlet participation in the affairs of the concern and for most of that period contrary to his consent & through the ill faith of arbitrary conduct of McLaughlin. Not apprehending the difficulties which have occured, Orator did not take such memorandums of the Books Notes & accounts of the concern, while in his power as he perhaps should. Your orator charges that McLaughlin has previous to this time coll -ected from & out of the Books Notes _accounts of the firm an amount more than sufficient all the debts of the firm and which in good faith he should have paid as soon as in his power. If not applid to the discharge of the debts of the firm the money to a large amount has been & is yet in his hands & may have been applied by him to his own use in the business of his own mercantile establishment & this your orator charges to be the case. Of one thing orator is certain none of the moneys collected by McLaughlin ever came to his hands & although he has had abundant means & time more than sufficient