COOK V. MOFFAT, 46 U. S. 295 (1847)

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U.S. Supreme Court

Cook v. Moffat, 46 U.S. 5 How. 295 295 (1847)

Cook v. Moffat

46 U.S. (5 How.) 295


A contract made in New York is not affected by a discharge of the debtor under the insolvent laws of Maryland, where the debtor resided, although the insolvent law was passed antecedently to the contract.

The prior decisions of this Court upon this subject reviewed and examined.

Cook was a citizen of Maryland, and Moffat and Curtis were citizens of New York.

It was an action brought in July, 1835, by Moffat and Curtis against Cook, upon the common money counts. Cook confessed judgment subject to the opinion of the court upon the following case stated, namely:

"In Circuit Court of the United States, Fourth Circuit, District of Maryland"

"John L. Moffat and Joseph Curtis surviving partners of"

"Jonathan Wilmarth v. William G. Cook"

"Statement of Facts. John L. Moffat, Joseph Curtis and Jonathan Wilmarth (the last of whom is now deceased) were citizens of the State of New York and resident there and partners trading under the name and firm of Wilmarth, Moffat & Curtis and the defendant was a citizen and resident of Maryland during the times when the contracts and transactions upon which this suit is founded or which constitutes the causes of this action, were entered into and had and made between the said firm and said Cook."

"That the course of dealing was that Cook, the defendant, used to write to said firm, ordering such articles or goods as he wanted, and they, said firm, sent them to him, and charged the goods in

Page 46 U. S. 296

their books. In order to settle the account current from time to time, Cook sent to the said firm (usually by mail, sometimes, perhaps, otherwise) his note at six months, and these notes averaged $500 per month, and were punctually paid, for a time, in Baltimore. Cook at length became embarrassed, and wanted extensions, until he stopped payment entirely, being then indebted to said firm,"

On book account . . . . . . . . . . . . . . . . . . . $2,104.98

And owing 1 note, due 4th April, 1832, for. . . . . . 500.00

And owing 1 note, due 14th May, 1832, for . . . . . . 500.00

And owing 1 note, (do not know exactly when due). . . 416.02

And owing 1 note, due 2d June, 1832, for. . . . . . . 500.00

And owing 1 note, due 30th June, 1832, for. . . . . . 500.00

And owing 1 note, due 1st July, 1832, for . . . . . . 800.00

And owing 1 note, due 13th August, 1832, for . . . . . 500.00

And owing 1 note, due 24th September, 1932, for . . . 500.00

Total debt . . . . . . . . . . . . . . . . . $6,321.00

"The above notes were remitted by Mr. Cook to said firm previously to March, 1832, when he stopped payment. On 7 June following, his New York creditors generally agreed to give him time to pay, and the said firm of Wilmarth, Moffat & Curtis about that time, by arrangement made with Mr. Disosway, Cook's attorney in New York, gave time, and took Cook's three notes, drawn payable to the said firm, for the sums following, all dated 12 May, 1832, as the respective time as follows, viz.:"

One, 12 months after date, for . . . . . . . $2,107.00

One, 15 months after date, for . . . . . . . $2,107.00

One, 18 months after date, for . . . . . . . $2,107.03



"These notes were drawn and dated at Baltimore by Cook, and sent by him to his said attorney at New York, and there delivered by said attorney to the said firm; they were given for the amount of Cook's account, and the notes then had and held by said firm against Cook; the old notes being then given up to his attorney. These three notes and the consideration thereof, namely, the goods sold and delivered as aforesaid, constitute the ground of this action; the amount of the notes being the amount claimed. It is also admitted that said Cook has applied for and obtained the benefit of the insolvent laws of Maryland since such notes fell due."

"EDWARD HINKLEY, Attorney for Plaintiffs"

"J. GLENN, for Defendant"

"Upon the foregoing statement of facts, the plaintiffs pray for a general and unqualified judgment, notwithstanding the release of Cook, since the making of said notes, under the insolvent laws of Maryland, and the plaintiffs rely upon the cases of Ogden v.

Page 46 U. S. 297

Saunders, 12 Wheat. 213; Boyle v. Zacharie & Turner, 6 Pet. 634; Frey v. Kirk, 4 Gill. & J. 509."

"The circumstance of the notes being dated and made at Baltimore, in favor of citizens, at the time, of New York, does not make the contract a Maryland contract, any more than did the acceptance of bills of exchange by Mr. Ogden, in the State of New York, make such acceptance a New York contract, so as to be discharged by Mr. Ogden's release under the insolvent laws of that state."

"The evidences of contracts made between citizens of different states cannot bear date in both the states of the respective parties. In the nature of things and according to the course of business, they would bear date and be signed by one party only, in one of the states, most commonly in the state of the citizenship and residence of the party signing. And it would be immaterial in principle in which of the states it might bear date. It is a contract between citizens of different states at the time when made, and this is the fact and the principle which excludes it from the operation and effect of a release of the debtor under the insolvent laws of his state."

"EDWARD HINKLEY, Attorney for Plaintiffs"

"1. The defendant's attorney insists that the contract was to be performed in Maryland, and governed by the laws of Maryland, and that the judgment must be to exempt the future acquisitions of the defendant from execution."

"2. That at all events the judgment must be so entered as to exempt the defendant's person from arrest."

"J. GLENN, for Defendant"

"Judgment for the Plaintiffs upon the Case stated"

"Whereupon, all and singular the premises being seen, heard, and by the Court here fully understood, for that it appears to the court, that the said John L. Moffat and Joseph Curtis are entitled to recover in the plea aforesaid. Therefore it is considered by the Court here that the said John L. Moffat and Joseph Curtis recover against the said William G. Cook, as well the sum of twelve thousand dollars, current money, the damages in the declaration of the said John L. Moffat and Joseph Curtis mentioned, as the sum of seventeen dollars and twenty-five cents adjudged by the Court here unto the said John L. Moffat and Joseph Curtis on their assent, for their costs and charges by them about their suit in this behalf laid out and expended. And the said William G. Cook in mercy &c."

"Memorandum. Judgment rendered in this cause on this 21 April, 1836, for the damages laid in the declaration and costs of suit; the said damages to be released on payment of $7,335.57, with interest from 21 April, 1836, and costs of suit."

"Memorandum. That no execution against the person of the defendant be issued in the above cause on said judgment without the leave of the court. "

Page 46 U. S. 298

To review this judgment the case was brought up to this Court. chanrobles.com-red

Page 46 U. S. 307


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