Clark v. Oakley's Adm'r , 4 Ark. 236 ( 1842 )

By the Court,

Lacy, J.

The complainants seek to be relieved on the ground of fraud. All the material allegations of the bill are expressly denied by the answer, and the proof by no means supports the charge of fraud. .The answer denies that the obligation sued on was given in consideration of the assigned notes of Edwards and Carr, or that the respondent ever received any payment upon them. The bill does not state in express and positive terms that these notes constituted the consideration bf their obligation to the respondent, but it leaves a strong and almost unavoidable inference of that fact. There is no evidence whatever proving that the several notes of Carr and Edwards constituted the consideration of the complainants’ bond to the defendant. This fact then is disproved by the answer. The other allegation upon which the respondent is sought to be charged is, that while he had Carr and Edwards’ note in his possession by assignment, he received upon them the full amount of payment, which he failed to credit; and therefore, by his fraudulent representations, he induced John Clark and Oakley to take back these notes, and execute their own obligation in lieu of them; that the assignments were cancelled, and that they afterwards brought suit upon the notes; that upon the trial of the cause, Carr pleaded payment by Edwards to Benjamin Clark, and defeated their cause of action. The record in this suit is made part of the bill, but it was not produced, or offered to be read as evidence upon the hearing. This allegation is certainly not supported by the proof. The answer expressly and positively contradicts the whole of it. It states that the obligations of Carr and Edwards were delivered as collateral security, to secure the payment of John Clark and Oakley’s obligation; that Carr and Edwards were not represented as insolvent; that he never received any thing from them except $300 upon Carr’s individual note, upon which Edwards was security, and which was given up; and that-he accounted to the complainants for that amount. He insists that the suit of Claik and Oakley against Carr and Edwards was tried upon several pleas joined — a plea of payment to Clark and Oakley themselves, and a failure upon (heir part to execute their agreement with Carr and Edwards; and that upon the pleas and evidence adduced in support of them, a verdict and judgment were had, and not upon the plea of payment to himself. The testimony- by no means establishes that the respondent, while he held the notes of Carr and Edwards in his hands, ever received payment upon them. Carr himself fails to prove that he ever paid any thing to B. Clark. He merely states that he believes Edwards paid all the obligations except a small balance. But how or in what manner Edwards made the payment, or at what time, is left wholly to conjecture. This loose statement of Carr’s, then, establishes nothing. The statements of the other witnesses are equally vague and uncertain. McDonald only saw the notes in B. Clark’s hands, and calculated the interest on them, and examined the assignments, which were in Oakley’s hand-writing. These facts certainly do not show that the respondent received payment of or upon the notes; nor do they explain the nature or terms of the contract between the parties. Myrick states that Edwards had purchased $500 worth of groceries for Benjamin Clark, and Clark admitted that, should Edwards pajr for them, he was to credit Carr and Edwards’ notes, then in his possession, with that amount. There is no evidence that he paid for the groceries, or that Clark credited the ‡500 upon the note. This statement of the witness is a mere conversation with Benjamin Clark, which, from its indefiniteness, establishes nothing material as to the fact of payment. Again, it is made to depend upon a contingency, which is never proved to have happened. The answer then stands in full force, and it expressly disproves the allegations of the bill. Besides, the complainants have made the record in the case of John Clark and Oakley against Carr and Edwards a part of their bill; and although relying upon it to -show payment to Benjamin Clark, while he held the notes of Carr and Edwards in his possession, they have failed to produce it, or read it in evidence upon the hearing. Whether or not, under any state of facts, it would be competent evidence to charge Benjamin Clark, we do not feel ourselves called on to determine. One thing, however, is certain, that having appealed to the record for proof of payment to Benjamin Clark, they cannot be permitted to establish it by oral testimony; and in failing to produce it, the law raises the presumption that the production would have disproved the allegations of the bill. If it were possible that there could be any doubt upon the subject before, the non-production of the record not only disproves the allegation of payment stated in the bill, but it expressly affirms its denial in the answer, and overthrows the complainants’ only ground of equitable relief.

Reversed, injunction dissolved, and bill dismissed.