Joseph Cunningham, Administrator for the Estate of David Cunningham v. William Sublette
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Joseph CunninghamJoseph Cunningham admr
of David CunninghamDavid Cunningham
William SubletteWilliam Sublette

opinion of the Court delivered by Tompkins Judge
Error to St Louis Circuit CourtCircuit Court

This was an action of Assumpsit brought by the plaintiff CunninghamCunningham
against SubletteSublette in which ther was a verdict and Judgment for the defendant, to reverse which
the writ of error is prosecuted- The declaration contains four counts. 1st. for work and labor
by David CunninghamDavid Cunningham the intestate done and a promise to him in his lifetime . 2nd. An
account stated between the intestate and the defendant 3rd. Work and labor by intestate done for defendant and a promise to the plaintiff as administrator. 4th. an account stated
between intestate and the defendant. - It appeared in evidence that in July or August of the year 1826. SmithSmith , JacksonJackson and SubletteSublette the defendant entered into partnership in the
fur trade and that David CunninghamDavid Cunningham the intestate was in their employment. Sometime
in the year 1827 while CunninghamCunningham was in the employment of the persons aforesaid
he was killed by the Indians,- about two years after his death a witness says that he
enquired of SmithSmith one of the above named firm about the affairs of the intestate and
that SmithSmith answered him that the deceased had been doing very well, we (the

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said firm) owe him eleven hundred dollars. This took place according to that witness in the
lodge of the defendant and of SmithSmith in the mountains. Sometime in the month of October 1830 the defendant and said SmithSmith both being in the town of St LouisSt Louis, The plaintiff in this
action had a settlement as administrator of D CunninghamD Cunningham with SmithSmith acting for the
firm, and received from him two hundred & fifty dollars for which he gave his receipt as in
full of all demands. It was not in evidence that at this settlement any regular books of
accounts were produced belonging to the company It was understood that most of the papers
of the firm had been destroyed by the Indians in the mountains.- The plaintiff having
acquired the knowledge of this admission of SmithSmith after the settlement avove mentioned
had been made brought this action to recover the balance of the sum admitted to be due.
neither party requiring a Jury the matter was submitted to three persons whom the court
instructed that no evidence of an account stated was given except that with the admin-
-istrator. They found for the defendant. the plaintiff moved for a new trial because as he
contended the court had misdirected the above named persons to whom the matter in issue had
been referred. It is clear and admitted by the defendant's counsel that if through mistake of
the plaintiff or the misrepresentation of SmithSmith , he (the plaintiff) received a less sum than
was due to him as administrator of the intestate, that he would still have his right of action
to recover the balance- But it is contended that the only evidence of an account stated
is that stated with the plaintiff in his representative character. We think differently; Smith's
admission to one witness that the firm owed the intestate $ 1100 is in our opinion such
as ought to have been left to a Jury and if they believed the witness it would be sufficient
to justify them in finding for the plaintiff on the count for an account stated with the intestate
in his life time unless the defendant could be exonerated by showing that SmithSmith himself was
mistaken in the calculation of the amount due to the deceased. The Circuit CourtCircuit Court then we think
erred in giving such instructions & therefore should have allowed the plaintiff to have a new
trial. Its Judgment is therfore reversed and the cause remanded

M McGirk

G Tompkins

R WashR Wash