Legal Papers of John Adams, volume 1
This action was the climax of a series of clashes between James Steel of Haverhill, Massachusetts, and Asa Porter, a merchant and trader from the upper Connecticut Valley Coös region of New Hampshire.1 In September 1767 Steel had sold Porter and his partner Andrew Savage Crocker a consignment of 1600 barrel hoops. After Porter accepted settlement against him in another matter, Steel sued out a writ for the value of the hoops returnable at the December 1769 term of the Essex County Inferior Court.
Porter traveled south into Massachusetts in the fall of 1769, settling his accounts with various correspondents. At the beginning of November he told Jacob Rowell to leave a note of Porter & Crocker, which he held, at Walker's Inn in Haverhill, where Porter would settle it. On 29 November Porter stopped at Walker's and left Rowell a letter, reporting that he was unable to pay the note now but that satisfaction could be had from a correspondent in Newburyport. On the next day Porter and Steel met at Harriman's Inn at Plaistow, New Hampshire. Here, Porter paid Steel's claim for the hoops and, according to Porter, also gave Steel the sum owed to Rowell with instructions that it be paid over to the latter. Porter took a receipt and then departed for Coös.2
Whatever the agreement, Steel did not make payment to Rowell. Accordingly, Porter & Crocker brought suit against Steel at the July 1770 Essex Inferior Court. The declaration contained two counts: (1) That Steel had “received of the Plaintiffs the sum of five pounds ten shillings and in consideration thereof promised the plaintiffs to pay the same sum to one Jacob Rowell on their account and to procure the same sum to be endorsed on a note of hand which the said Rowell had of the plaintiffs payable to the said Rowell.” (2) A count in indebitatus assumpsit for the same amount, “had and received by said James for the use of the Plaintiffs.” On 163a plea of the general issue entered by Nathaniel Peaslee Sargeant, counsel for Steel, the case went to the jury, which returned a verdict for Porter in the sum sued for and costs.3
Steel appealed to the Superior Court, where at the June term 1771 he obtained a verdict reversing the prior judgment.4 Porter now sought a writ of review. In November 1772 the case came on in the Superior Court at Salem, with Adams joining Sargeant as Steel's counsel, and John Lowell appearing for Porter. The form of Steel's receipt and the nature of the pleadings suggest some interesting possibilities in the law of contracts, but no issues in this field seem to have been raised.5 Adams' minutes of the evidence (Document I), and minutes of a portion of the argument in Wetmore's hand (Document II) indicate that Steel's basic contentions were factual: he had not signed the memorandum of the contract urged against him; he had not received the sum sued for. As to the first point, the plaintiffs introduced the original memorandum and a handwriting sample to establish Steel's signature. Steel then urged that the instrument had been altered after he had signed it, but the court ruled that he bore 164the burden of proof on this issue. The jury apparently found that he had not met this burden and that circumstantial evidence indicated that he had received the money, because the verdict was for Porter & Crocker.6
The following statement of the case is derived from the testimony on review in the Superior Court (Doc. I), and the files of the case, SF 132063, 132246, pertinent extracts of which appear in footnotes below.
The receipt on file in the case provides, “Plastow 30th Novr. 1769. Received of Porter & Crocker five pounds ten shilling which I promise to pay to Jacob Rowell of New Salem on their Account and to endorse it on their note payable to him, and also received of said Porter & Crocker five pounds eighteen shillings & 8d. LM in full for hoops and all demands. James Steel.” SF 132246.
See pleadings and judgment, SF 132246.
SCJ Rec. 1771, fols. 94–95; Min. Bk. 93, SCJ Ipswich, June 1771, C–12. The following minutes of the trial appear in the Wetmore Notes, No. 2, Adams Papers, Microfilms, Reel No. 184:
“Steel and Porter. Assumpsit. Special declaration, and Count for money received to plaintiffs use.
“The 1. Count is for a promise to pay a Sum he had received of the plaintiff on their account to B.
apparently an inadvertence for Rowell and to procure it to be indorsed on a Note given by the Plaintiffs to said B. yet he hath not paid it to said B. nor procured it to be indors'd on said note tho requested.“The written promise is that he had received £– of Plaintiffs which I promise to pay to B. of —— on their account and to endorse it on their note payable to him. Sewl. objects the variance between Count and writing.” (“Sewl.” is David or Jonathan Sewall, of counsel for Steel with Sargeant at this stage.)
The theory of the first count seems to have been that the action lay on Steel's promise to pay over the money and procure the endorsement, with Steel's receipt of the money as consideration. Such a contract has been upheld against a defense of no consideration on the theory that there was detriment to the promisee in handing over the money and trusting the promisor. Wheatly v. Low, Cro. Jac. 668, 79 Eng. Rep. 578 (K.B. 1624), cited with approval by Holt, C.J., in Coggs v. Bernard, 2 Ld. Raym. 909, 920, 92 Eng. Rep. 107, 114 (Q.B. 1703). Modern theorists have sought to limit this recovery to bailment situations, indicating that otherwise the remedy lies in tort, but it is analogous in at least some respects to the remedy provided by the Restatement of Contracts, §90, for breach of a gratuitous promise which induces a reasonable reliance. See Samuel Williston and George J. Thompson, Selections from Williston's Treatise on the Law of Contracts §138 (N.Y., rev. edn., 1938); G. C. Cheshire and C. H. S. Fifoot, Law of Contract 68–71 (London, 4th edn., 1956). There is the further possibility that the receipt as proved, but not pleaded (note 2 above), might have been read to recite a consideration in Porter's settlement of Steel's claim for the hoops, although there is serious question whether payment of an existing debt is consideration. See Williston and Thompson, Selections §120. Since the approach under the first count could have involved problems of proof of negligence, damages, and perhaps even reasonable reliance, it is quite possible that the case went off on the count for money had and received, in which the equities of the plaintiff's case were more directly in point. See Fifoot, History and Sources
365–367.
SCJ Rec. 1772, fol. 190; Min. Bk. 93, SCJ Salem, Nov. 1772, C–12.
1772-11
J ohn Lowell
.2 Receipt. Wm. Wingate.3
Serjeant.
Mr. Webster. P
Writ. S. vs. P. & C
Jona. Serjeant. 1600 Hoops. S. deliverd.
Amos Mullikin. C. received the 50 dollars. C. paid the 6 dollars for my fees,5 generously, and treated Us too, upon our representing Poverty. Rather than S. should have gone to Goal, Mr. Wallace would have paid the whole 100 dollars. Dont think that S. knew that Wallace had any more Money.
S. Harriman. P. came into my House, and call'd for Drink, and Sat by the fire. P. moved to S. to walk into another Room. Moved it twice. At last they went into a cold Room. Saw em at the Table with Pen and Ink. Porter took up the drink and drank but never asked S. to drink, and never bid him farewell.6
Moses Cushing. They sat at Table settling as I thought. No freedom between em.
Nat. Walker. Jacob Rowell lodged his Note with me. The young Man said P. was to be along and pay it. P. came along and asked me, about the Note, twice. He said he was bound
Jos. Dodge. The River froze over 28th. Novr. 1769.
James Walker. Rowell left the Note. P. came down and left a Letter and then went and led his Horse over the Ice. There had not been any Horse over before. S. at N
Letter left at Walkers, 29 Novr. 1769. Dated a day before it was left.7
Jacob Rowell. P. down from Cohoss. 1st Novr. 1769. Told me to leave my Note at Mr. Walkers. And he would pay. I did. Some time after I call'd, but Note not paid. Some time after called again and found the Letter. Sometime the next June after Balch told me, that he had wrote that he had left the Money with a Man but never said who nor where. In March he wrote me that his Money holding out better than he expected he had left it upon the Road.
P. when he took up the Note, he askd me if Steel had got the Letter he wrote to me.
S. Chadwick. P. left Money with me for Rowell, fore Part of Summer before the suit. P. said nothing to me about S's ill treating him. He asked what sort of a Man S. of Haveril was accounted. I said
S. Whites Deposition.8
Number of Gentlemen to Character.
Mr. Balch. I told Mr. P. the Money was not indorsed. He said he was surprized.
Fitz. S. in a great Passion. Said the Receipt was forged. S. said he should prove he was used to doing such Things. His father had not brought him up to Colledge for Nothing.9 I told P. he would give S. an Advantage if he
Moses Littles Deposition. Good Character.10
Jacob Chase Deposition. Went thro Chester.11
Susanna Hale and other.12
In JA's hand. Adams Papers, Microfilms, Reel No. 185.
The MS could be read “J.Q.” (Josiah Quincy), but the Minute Book lists only Lowell as counsel for Porter. Min. Bk. 93, SCJ Salem, Nov. 1772, C–12.
See Steel's receipt to William Wingate, in Nov. 1771, for certain goods received in payment for buildings conveyed by Steel to Wingate, SF 132246. This document was apparently put in evidence by Lowell to prove Steel's signature on his undertaking with Porter. See text at note
See writ dated 16 Sept. 1769 for the Essex Inferior Court, Dec. 1769 term, in an action of the case brought by Steel against Porter & Crocker, with counts on an account annexed and in quantum valebant for 1600 hoops sold to the defendants by Steel in Sept. 1767 to the value of £5 6s. 8d. SF 132246. No documentation on the other litigation referred to has been found.
Mullikin was a Deputy Sheriff in Essex County, who served the writ cited in note
Harriman appeared in person on this occasion. In his deposition dated 7 July 1770, apparently taken at Steel's request, he had testified
“That some time within a year past Asa Porter of Coors
See Porter to Rowell, Haverhill, 29 Nov. 1769, SF 132246: “I was not able to procure the Money for you as I expected but was oblig'd to sue a man's note in order to get you Money and supose the Money will be paid soon if you have opportunity to send your note to Mr. Benjamin Balch of Newburyport in about three weeks I expect he will be able to get the Money for you as the Court is near at hand.” The letter continues with mention of other commercial matters between Porter and Rowell.
Deposition of Samuel White, “Sworn in Court, Novr. Term 1772”: “That being in the Town of Newbury Port, some time between the Month of July and Month of November, in the Year 1770, where I saw James Steel and Asa Porter together, and heard Steel tell Porter, that if he would go before a Justice, and give Oath that he let him have that Money (which Money I understood said Porter had recover'd of Said Steel, at the then last July Court) that he the Said Steel would pay the Debt and Costs.” SF 132246.
Porter was Harvard 1762, A.M. 1765. See 12 Sibley-Shipton, Harvard Graduates
166–168; MH-Ar. No record has been found of Steel's attendance at “Colledge.” He may thus mean that Porter learned to forge receipts at Harvard.
Deposition of Moses Little, 2 Nov. 1772, SF 132246: “that he has been acquainted with Asa Porter when he lived in Newburyport and since he has Lived at Haverhill in the Province of New Hampshire and has dealt confidently with Said Porter and allways found him Punctual and fair in his dealings.”
Deposition of Jacob Chase, Chester, N.H., 2 Nov. 1772, SF 132246:
“That Asa Porter Esqr. in Haverhill in New Hampshire Came to my house in the last of November or the first of December in the year 1769 to Enquire for one Daniel Wiot and one Purkins Coth of Campton which men the said Porter parted with in Newburyport and they told me that He the said Porter told them he was Going through Haverhill in the Massachusetts to Do Some Business he had there. He likewise told me he traveled through Haverhill and Came and Lodged at Capt. Hales tavern in Hampstead and the Next morning about Eleven o Clock the said Porter came to my house and after Dinner they all went on their journey Home which was Expedient for them on account of its being Remarkable Bad traveling.”
Deposition of Susanah Hale and John Emmory, 30 Oct. 1772, SF 132246: “That on or aboute the firste of December AD 1769 Asa Porter of Haverhill in the province of New Hampshire Esqr. on his jorney to Cooss (as he informd us) took a Lodging at the House of Capt. Ebenezer Hales Husband of the said Susanah who keeps a Publick House in Hampstead in said Province and after Breack faste the next morning Sat oute for his intended jorney as aforesaid.”