State Of Missouri ,
County Of St. Louis ,
SS.
Henry Chouteau ,
Clerk of the County Court , within and for the county of St. Louis , in the State of Missouri ,To All To Whom These Presents Shall Come- Greeting:

Whereas, David Cuningham late of the County of St. Louis , deceased, died intestate as it is said,
and you Joseph Cuningham having given sufficient security, I do therefore give and grant
unto you the said Joseph Cuningham full power and authority, to administer
all and singular the goods, chattels, rights and credits of the said deceased, lying and being within the said county of St. Louis , and to demand, collect, and in a legal manner
require and receive all, and all manner of debt and debts due and owing to the said deceased, and well and faithfully to dispose of the same according to law: And lastly I do
hereby constitute and appoint you the said Joseph Cuningham
administrator of all and singular, the goods, chattels, rights and credits of the deceased.

In Testimony Whereof, I have hereunto set my hand and official seal at St.Louis , this nineteenth day of October
in the year of our Lord, one thousand eight hundred and thirty, and of the American Independence, the fifty fifth. Henry Chouteau Clerk. I, Henry Chouteau , Clerk as aforesaid, do hereby certify, that the above letters of administration are duly recorded in my office, this
nineteenth day of October1830. Henry Chouteau Clerk

David Cunningham decd
Letters of Admr

In the Circuit Court
March term 1833

Saint Louis County to wit: Joseph Cunningham ,
administrator of all & singular the goods, Chattels, rights
& credits which were of David Cunningham deceased,
by Edwd Bates his attorney, complains of William
Sublette of a plea of trespass on the case upon pro
=mises For that whereas heretofore to wit on the first
day of December in the year of our Lord one thousand
eight hundred & twenty nine, at the County aforesaid,
in the lifetime of the said David Cunningham who is
since dead, the said William Sublette , in considera
=tion that he was then & there indebted to the said
David Cunningham in a large sum of money, to wit,
two thousand dollars, for the personal service, work &
labor, care & diligence of the said David , by him before
that time rendered, done, & performed in & about
the business & trade of the said William for the
said William & at his request, undertook & then
& there faithfully promised the said David Cun=
ningham to pay him the said sum of money
whenever he should be thereunto afterwards
requested. And also for that whereas heretofore,
in the lifetime of the said David Cunningham , who
is since dead, to wit on the first day of December in the
year of our Lord one thousand eight hundred & twenty nineat the county aforesaid the said William Sublette the
defendant accounted with the said David Cunningham
of & concerning divers sums of money before that time due
& owing from the said William to the said David & then
in arrear & unpaid, & upon that accounting the said
William Sublette was found to be in arrear & indebted
to the said David Cunningham , in another large
sum of money to wit: two thousand dollars; and being
so indebted, he the said William in consideration
thereof, undertook & then & there faithfully promised
the said David to pay him the said last mentioned
sum, whenever he should be thereunto afterwards
requested.

3 And also for that whereas heretofore to wit on the
first day of January in the year of our lord one
thousand eight hundred & thirty two at the county
aforesaid & after the death of the said David Cunningham in consideration that the said William
Sublette was indebted to the said David Cunningham
deceased, at the time of his his death, in a large sum of
money to wit, two thousand dollars, for the personal
service, work & labor, care & diligence of the said David ,
by him in his lifetime, rendered, done & performed,
in & about the trade & business of the said William ,
for the said William & at his request, & that the said
debt then remained unpaid, the said William Sublette
undertook & then & there faithfully promised
the said Joseph Cunningham as such administrator
as aforesaid to pay him the said last mentioned

sum of money whenever he the said William should
be thereunto afterwards requested

4.And also for that whereas heretofore to wit on the
day & year last aforesaid, at the County aforesaid, and
after the death of the said David Cunningham , the
said William Sublette accounted with the said
Joseph Cunningham as such administrator
as aforesaid, of & concerning divers other sums of
money due & owing from the said William to the said
David , at the time of the death of the said David
& then in arrear & unpaid and upon that account=
ing the said William was found to be in arrear &
indebted to the said David , in another large sum of
money to wit: two thousand Dollars: and being so found
to be in arrear & indebted, he the said William
in consideration thereof, undertook & then & there
promised the said Joseph Cunningham as such
administrator as aforesaid, to pay him the said
last mentioned sum of money whenever he the
said William should be thereunto afterwards
requested. Yet the said William Sublette ,
although often requested, has not paid the several
sums of money above mentioned nor either of them
nor any part thereof either to the said David
Cunningham in his lifetime, to the said
Joseph Cunningham , as such administrator as
as aforesaid, since the death of the said David . but the same still remain due & unpaid, to the
damage of the said Joesph as such administrator
Two thousand dollars, & therefore he suees &

And the said plaintiff brings here into court
the letters of administration to him granted in
one form of law, bearing state the nineteenth day
of October in the year of our Lord one thousand
eight hundred & thirty, which sufficiently testify
to the Court here that he is such administrator
as in his declaration he has above alleged.

Edwd Bates

County of Saint Louis SsThe State of Missouri To the Sheriff of the County of Saint Louis Greeting

We Command you to summon William Sublette that he be and
appear before the Judge of our Circuit Court at the next term thereof
to be held at the city of St Louis within and for the county of Saint
Louis on the fourth monday of march instant then and there to
answer unto Joseph Cunningham Administrator of all and
singular the goods, chattels rights and credits which were of David
Cunningham deceased of a plea of trespass on the case upon
promises to the damage of the said Joseph as such administrator
two thousand dollars and have you then there this writ

Witness Archibald Gamble Clerk of our
said Circuit Court at office this sixth day
of March One thousand eight Hundred
and thirty three Archibald Gamble Clerk

Served this writ on Wm Sublette on
the 9th March 1833 in the City of St Louis
by offering to read it & the declaration
to him which he refused to hear &

acknowledged service

John K.Walker
Sheriff
Service $ 1.00

No 52
Saint Louis Circuit Court
March Term 1833

This is an action of assumpsit
Damage $ 2000
Issue a summons

Edwd Filed 6th March 1833 Archibald Gamble Clerk

State of Missouri
County of Saint Louis ss.

Be it Remembered that heretofore to wit on the Sixth day of March in
the year of our Lord one thousand Eight Hundred and thirty three Joseph Cunningham
Administrator of David Cunningham deceased by his attorney filed in the office of the clerk of
the Circuit Court for the County of Saint Louis his declaration against William Sublette which
said declaration is in the words and figures following to wit; "In the Circuit Court March Term
1833 Saint Louis County- to wit; Joseph Cunningham administrator of all and singular the
goods chattels rights & credits which were of David Cunningham deceased by Edwd Bates his
attorney complains of William Sublette of a plea of trespass on the case upon promises
-For that whereas heretofore to wit on the first day of December in the year of our Lord
one thousand Eight hundred and twenty nine at the county aforesaid in the life time of
the said David Cunningham who is since dead the said William Sublette in consideration
that he was then & there indebted to the said David Cunningham in a large sum of money
to wit two thousand dollars for the personal service work & labor, care & diligence of the said
David by him before that time rendered done & performed in & about the business & trade of
the said William for the said William & at his request undertook & then & there faithfully
promised the said David Cunningham to pay him the said sum of money whenever
he should be thereunto afterwards requested. And also for that whereas heretofore in
the life time of the said David Cunningham who is since dead to wit; on the first day of
December in the year of our Lord one thousand eight hundred & twenty nine at the
county aforesaid the said William Sublette the defendant accounted with the said David
Cunningham of & concerning divers sums of money before that time due & owing from
the said William to the said David & then in arrear & unpaid & upon that accounting the
said William Sublette was found to be in arrear & indebted to the said David Cunningham
in another large sum of money to wit; two thousand dollars, and being so indebted he the
said William in consideration thereof undertook & then & there faithfully promised the
said David to pay him the said last mentioned sum whenever he should be thereunto
afterwards requested - And also for that whereas heretofore to wit on the first day of
January in the year of our Lord one thousand eight hundred & thirty two at the County
aforesaid after the death of the said David Cunningham in conideration that the said
William Sublette was indebted to the said David Cunningham deceased at the time
of his death in a large sum of money to wit two thousand dollars for the personal service
work & labor care & diligence of the said David by him in his lifetime redered done &
performed in & about the trade & business of the said William for the said William & at his
request & that the said debt then remained unpaid the said William Sublette undertook
& then & there faithfully promised the said Joseph Cunningham as such administrator
as aforesaid to pay him the said last mentioned sum of money whenever he the said
William should be thereunto afterwards requested - And also for that whereas heretofore to wit
on the day and year last aforesaid at the county aforesaid and after the death of the said David
Cunningham the said William Sublette accounted with the said Joseph Cunningham
as such administrator as aforesaid of & concerning divers other sums of money due & owing from the said William to the said David at the time of the death of the said David & then in
arrear & unpaid and upon that accounting the said William was found to be in arrear & indebted
to the said David in another large sum of money to wit two thousand dollars and being so
found to be in arrear & indebted he the said William in consideration thereof undertook & then
& there promised the said Joseph Cunningham as such administrator as aforesaid to pay him
the said last mentioned sum of money whenever he the said William should be thereunto after-
-wards requested. Yet the said William Sublette although often requested has not paid the
several sums of money above mentioned nor either of them nor any part thereof either to the
said David Cunningham in his life time or to the said Joseph Cunningham as such admin-
-istrator as aforesaid since the death of the said David but the same still remain due &
unpaid to the damage of the said Joseph as such Administrator two thousand dollars
& therefore he sues &c. And the said plaintiff brings here into court the letters of Administration
to him granted in due form of law, bearing date the nineteenth day of October in the year of our
Lord one thousand Eight hundred & thirty which sufficiently testify to the court here that he
is such administrator as in his declaration he has has above alleged Edwd Bates _ and
afterwards to wit on the day of the filing of the said declaration the clerk of the said Circuit
Court Endorsed thereon a writ of summons as follows to wit; " County of Saint Louis Ss The
State of Missouri , To the Sheriff of the County of Saint Louis , Greeting- We command you to summon
William Sublette that he be and appear before the Judge of our Circuit Court at the next term
thereof to be held at the city of St. Louis within and for the county of Saint Louis on the fourth
monday of March instant then and there to answer unto Joseph Cunningham Administrator
of all and singular the goods chattels rights and credits which were of David Cunningham
deceased of a plea of trespass on the case upon promises to the damage of the said Joseph as such
Administrator two thousand dollars and have you then there this writ. Seal Witness
Archibald Gamble Clerk of our said Circuit Court at office this sixth day of March one thousand
Eight hundred and thirty three Archibald Gamble Clerk and afterwards to wit at the return term
thereof the Sheriff of the county of Saint Louis returned the said writ and declaration into our said
court with his return thereon endored in the words and figures following to wit; "served this writ on Wm .
Sublette on the 9th March 1833 in the City of St. Louis by offering to read it & the declaration to him which he
refused to hear & acknowledged service - John K Walker Sheriff and afterwards to wit at the
said March term of the said Circuit Court in the year aforesaid the said defendant by his attorney
filed his pleas to the action aforesaid in the words and figures following to wit Joseph Cun-
-ningham
admr of David Cunningham to William Sublette And the said William by
Geyer his attorney comes and defends the wrong and injury when &c and says that the
said plaintiff ought not to have or maintain his aforesaid action thereof against him
the said defendant because he says that the said Joseph is not and never hath been
Administrator of the goods or chattels rights or credits which were of the said David
Cunningham deceased in manner and form as the plaintiff hath above thereof
alleged and this he prays may be enquired of by the country And for further plea in
this behalf the said defendant says that he did not undertake & promise in manner & form
as the said plaintiff hath above thereof in his said declaration alleged and of this he puts himself
upon the country &c. (the third plea of the said defendant being afterwards withdrawn is not here
inserted or copied)- and the said cause was continued from term to term until the march term

I went into the lodge of the defendant & Smith & began to inquire into the affairs of David Cunning-
ham
who from the statements of the company had been killed about two years before by the
Mackhaba Indians. I had taken up a letter for him but finding that he was dead I was Induced
to inquire into his affairs- Smith answered me in these words as near as I can recollect- "He had
been doing very well before he was killed we owe him eleven hundred dollars” I understood that
at the time of his death he was in the employ of Smith, Jackson & Sublette- Question by defendant-
do you know if Cunningham was in the employ of Smith, Jackson & Sublette? Answer- I do not- I only
understood it from Mr Robert Evans and several other men in the employ of Smith, Jackson &
Sublette- Question- do you know who did business in the Rocky mountains in Eighteen hundred
and twenty seven- whether it was Smith, Jackson & Sublette or Ashley & Smith? Answer, I do not-
Question- is not Joseph Cunningham Administrator of David Cunningham deceased your
brother in law?- Answer he was married to my sister- She is now dead and he has since
married again- Question- did you ever hear Joseph Cunningham say that he had received
money from Smith, Jackson & Sublette on account of the services of his deceased brother David ?
Answer yes- I have heard him say that he had received two hundred and fifty dollars, it was
last fall a year ago that I heard him say so, and he said that he received it since the death of his
brother- and further this deponent saith not Orville D Shanks-" And the testimony of William H
Ashley of the following purport-" Jedediah S Smith- David E Jackson and William S Sublette composed
the firm of Smith, Jackson & Sublette who were engaged in the fur trade in the extreme West- The
partnership begun in July or August in 1826 and ended as witness has understood in the fall of 1830
or Spring of 1831. Witness attended to the pecuniary interests of the firm at St Louis - received the return
furs- sold them- paid over money &C Witness does not personally know that David Cunningham
was in the service of the firm but understood that he was- heard it from various persons & thinks
from some of the members of the firm- that he went with Mr Smith to California or in that direction
& was engaged in that expedition when he was killed- that he was employed as a hired man-
that in october 1830, at the house of Witness in St Louis a Settlement was made between Joseph
Cunningham admr of David Cunningham and the firm- thinks both Smith, & Sublette were
present but is not sure as to Sublette - did not pay particular attention to the settlement as he
had nothing to do with it except that he paid the money when the balance was struck & receipt
given. He identifies the receipt in the following words" St Louis Received the nineteenth day of
“October AD 1830 from Smith Jackson & Sublette the sum of two hundred and fifty dollars in
"full of all demands of David Cunningham deceased settlement-" Joseph Cunningham
“Administrator” & proves the body of it to he in the hand writing of Jedediah Smith -
the witness does not believe that any regular books of accounts were produced at the settlement-
Had understood that most of the papers of the firm had been destroyed by the Indians in the moun-
-tains- He states that D Cunningham was at one time in his employ in the fur trade in the
mountains in 1824 understood that he afterwards did business as a freeman that is on his own
account- Persons dealing in that way usually get their outfits from the larger regular traders
consisting of horses traps & goods amounting commonly to about $ 500.... the defendant gave
in evidence the receipt above mentioned and the deposition of Robert Evans as follows-
"Robert Evans being produced sworn and examined on the part of the defendant deposes and says- In
"the year Eighteen hundred and twenty five I started to the Rocky mountains in the employ of
"Ashley and Smith - In the year following Smith and I went away to the South to California and
“returned on the fourth of July eighteen hundred and twenty seven- From the time of my arrival at
"the Rocky mountains until I returned from California David Cunningham was a free man
"working hunting and trapping for himself- on my Return from California Bruffee & of the said Circuit Court in the year eighteen hundred and thirty five previous whereto
to wit on the sixth day of November in the year Eighteen hundred and thirty three the
said plaintiff by his attorney filed his replications to the pleas aforesaid in the words follow-
ing
viz; Joseph Cunningham admr of D Cunningham vs William Sublette and the said
plaintiff for replication to the pleas of the said defendant by him firstly & secondly above pleaded
& whereof he has put himself upon the country does the like (and the third plea of the defendant
being withdrawn the replication thereto is omitted) and afterwards to wit at the said march
term of the said Circuit Court on the Ninth day of April one thousand eight Hundred and
thirty five the following proceedings were had in said court in the cause aforesaid to wit, Joseph
Cunningham Admr of David Cunningham vs William Sublette . Now at this day come the parties aforesaid
by their respective attorneys aforesaid and thereupon the said defendant withdraw His third plea filed
in this case and neither of the parties requiring a Jury the court refer the matter to Hugh Richards
Thomas Gambiland Robert N Moore three indifferent and competent persons who being duly sworn
well and truly to try the issues within joined between the parties aforesaid on their oath aforesaid
report to the court that as to the first issue within joined between the parties aforesaid they do find
that the said Joseph is now and hath been administrator of the goods and chattels rights and credits
which were of the said David Cunningham deceased in manner and form as the plaintiff hath above
thereof alleged and that as to the second issue within joined between the parties aforesaid they do find
that he the said defendant did not undertake and promise in manner and form as the said
plaintiff hath above thereof in his said declaration alliged which report is approved of by the court
therefore it is considered that the said plaintiff take nothing by his said suit and that the said
defendant go thereof without day and it is further considered that the said William Sublette recover
against the said Joseph Cunningham Administrator of David Cunningham his costs and charges
by him about his defence in this behalf expended"- and at the same term of the said Circuit Court
on the eleventh day of April in the year last aforesaid the following further proceedings were had
in said cause to wit Joseph Cunningham Administrator of David Cunningham decdvs William
Sublette - the plaintiff by his attorney moves the court to grant him a new trial in this case
for N T
overuled
for reasons filed by him which motion upon mature deliberation is by the court overruled- and
the reasons aforesaid which were filed on the tenth day of April in the year and at the term aforesaid reasons for N J
are as follows to wit; " Jos Cunningham Admr of David Cunningham decdvs William Sublette - the
plaintiff moves the court to set aside the report of the auditors & grant him a new trial because 1- the
auditors decided against the evidence in the cause 2- the auditiors decided against law. 3. the
Court misdirected the auditors in this that “there is no evidence in the cause of an account stated
except the receipt" Edwd Bates pq = and afterwards at the same term of the said Circuit Court
on the sixteenth day of April in the year aforesaid the said plaintiff filed his bill of exceptions
in the case aforesaid which is as follows to wit, " Joseph Cunningham admr of David Cunningham
Bill of Except
decd vs William Sublette - Be it Remembered that at the trial of this cause the plaintiff to prove the
issues on his part gave in evidence the letters of Administration of Joseph Cunningham on the
Estate of David Cunningham (which being regular & sufficient to prove the issue for the plaintiff it is agreed
shall not be inserted) also the deposition of Orville Shanks as follows "Orville D Shanks being produceed
sworn and examined on the part of the plaintiff deposes and says- In the fore part of the winter of
Eighteen hundred and twenty nine I was in the employ of Smith Jackson & Sublette of which
firm the present defendant William Sublette was one, at that time the party under the command
of Smith Jackson & Sublette were encamped on Big horn River among the Rocky montains

Scott were doing business in the mountains for Ashley & Smith- they employed me to come
home I know not that Smith Jackson & Sublette ever brought any furs of Cunningham -
I understood from reports in comp that Cunningham had hired himself to Smith, Jackson
& Sublette for one year from about the tenth of July Eighteen hundred and twenty seven
together with his horses & equipment for something like nine hundred dollars and reports
came in confirmed to me by Smith himself when I saw him again that Cunningham had
been killed about the thirteenth of the following month- when I came down in Eighteen
hundred and thirty I wrote to Joseph Cunningham to come and Settle with Smith Jackson &
Sublette, as I understood that there was something due his deceased brother- some time after
about the first of November of the same year. I saw him and he informed me that he had settled
with them and showed me the money that they had paid him the amount I do not know
and further this deponent saith not- Robt Evans- and no further evidence was given
on either side- Neither party requiring a Jury the court referred the cause to three auditors
and the evidence being submitted to them and thereupon the court instructed the auditors
that “there is no evidence here of an account stated except the recept to which instruction
the plaintiff excepted- thereupon the auditors made their report finding the first issue
for the plaintiff & the second for the defendant and the defendant withdrew his third plea-
the plaintiff moved the court to set aside the report of the auditors and for a new trial
and filed the following reasons 1- the auditors decided against the evidence in the cause
2 the auditors decided against law. 3 the court misdirected the auditors in this that there
is no evidence in the cause of an account stated except the receipt “which motion the
court overruled and gave judgment for the defendant to which proceeding & Judgment
the plaintiff excepts and tenders this his bill of exceptions & C-

L E Lawless -

copy for Mr Bates
$ 3.37 1/2

and the said William by
Geyer his attorney comes and defends the wrong and
injury when and says that the said plaintiff ought
not to have or maintain his aforesaid action there
against him the said defendant because he says that
the said Joseph is not and never hath been admin
istrator of the goods or chattels rights or credits which were
of the said David Cunningham deceased in manner
and form as the plaintiff hath above thereof alleged
and this he prays may be enquired of by the country &c

2.And for further plea on this behalf the said defendant
says that he did not undertake & promise in manner
and form as the said plaintiff hath above thereof
in his said declaration alleged and of this he puts
himself upon the country &c

3.And for further plea in this behalf the said defendant
says that the said plaintiff ought not to have or main
tain his aforesaid action thereof against him, because
he says that the said David deceased before and
at the time of his decease was and the said plaintiff
as such administrator since the decease of the said
David was and still is indebted to the said de
fendant on a large sum of money to wit in the sum
of three thousand dollars for divers goods wares
and merchandize, by the said defendant sold
and delivered to the said David in his life time
and at his request and for meat drink clothing
washing and lodging by the said defendant found
and provided for the said David in his life time
and at his like request, also for money by the defen
dant and advanced to & paid laid out & expended
for the said David in has lifetime & at his request
and also for money by the said David in his life time
had & received to & for the use of the defendant; which
said sum of money still is due and owing to the
defendant and exceeds the damages sustained by the
plaintiff by reason of the sum of the non performance of the said
supposed promises & undertakings in the declaration men-tioned, and the said defendant is ready and willing
and hereby offers to set off and allow to the said
plaintiff the full amount of said damages according
to the full amount of the Statute in such case made & provided
to wit at the county ofresaid, & this the defendant is
ready to verify wherefore he prays judgment &c

Geyer for deft

No 52 St Louis Circuit Court
March Term 1833

pleas

1

2

3 set off

Filed 11 may 1833 A Gamble Clerk

And the said plaintiff for replication
to the pleas of the said defendant by him firstly
& secondly above pleaded & whereof he has put him
self upon the County, does the like

And as to the plea of the defendant by him
thirdly & lastly above pleaded, the said plain-
tiff says that by reason of any thing in that plea
alledged, he ought not to be barred & precluded
from maintaining his action aforesaid,
because he says that his intestate, in his lifetime
& at the time of his death was not and this
plaintiff as such administration was not at
the time of the Commencement of this suit, & is
not now indebted to the said defendant in
manner & form as in the said plea is above
supposed, nor in any other manner, nor in any
sum and this he prays may be enquired of by
the County.

Edwd Bates

No 52 Saint Louis Circuit Court
March Term 1833

Replications

Filed 6th November 1833 Archibald Gamble Clerk

3 plea withdraws Report of Auditors approved and judgment for defendant Book 7 - page 359
motion for new Trial - 7 - 363overuled) - Bill of Except - 370
Verdict for defendant - book 8 - page 216
Fee bill 165

The plaintiff moves the court to set aside
the report of the auditors & grant him a new
trial - Because

1. The auditor decided against the evidence
in the cause .

2. The auditor decided against law.

3. The court misdirected the auditors, in this
that “there is no evidence in the cause
of an account stated, except the receipt”

Edwd Bates p.q.

neo: for new trial
filed April 10th
1835

A Gamble Clk

Be it remembered that at the trial of this
cause, the plaintiff, to prove the issues on his
part, gave in evidence the letters of administration
of Joseph Cunningham on the estate of David
Cunningham (which being regular & sufficient
to prove the issue for the plaintiff, it is agreed shall
not be inserted) Also the deposition of Orville
Shanks as follows (-insert it-) And the
testimony of William H Ashley , of the
following purport - Jedediah S. Smith, David
E . Jackson , and William L Sublette composes
the firm of Smith Jackson & Sublette - who
were engaged in the fur trade in the extreme west.
The partnership began in July or August in
1826, and as witness has understood
in the fall of 1830, or spring of 1831. Witness
attended to the pecuniary interests of the firm at
St Louis - received the return furs sold them
- paid over money Witness does not personally
know that David Cunningham was in the
service of the firm, but understood that
he was, heard it from various persons &
thinks from some of the members of the
firm - that he went with Mr Smith to
California or in that direction, & was engaged
in that expedition when he was killed - that
he was employed as a hired man that in
October 1830, at the house of Witness, in St Louis ,
a settlement was made between Joseph
Cunningham admr, of David Cunningham and the firm. Thinks both Smith & Sublette were
present but is not sure as to Sublette - Did not
not pay particular attention to the settlement,
as he had nothing to do with it except that he
paid the money, when the balance was struck
receipt given. He identifies the receipt in
the following words " St. Louis - Received the
“nineteenth day of October AD 1830 from
“Smith Jackson & Sublette, the sum of two
“hundred and Fifty dollars, in full of all
"demands of David Cunningham deceased
“as settlement - Joseph Cunningham
Administrator ”

& proves the body of it to be in the handwriting of
Jedediah Smith . The witness does not believe
that any regular books of accounts, were provided
at the settlement - Had understood that most
of the papers of the firm had been destroyed
by the indians in the mountains. He
states that D. Cunningham was at one time
in his employ in the fur trade in the mountains
in 1824 - understood that he afterwards
did business as a free man - that is on his
own account. Persons dealing in that way
usually get their outfits from the larger
regular traders, consiting of horses traps
& goods, amounting commonly to about $ 500

The defendant gave in evidence the
receipt above mentioned, and the deposition
of Robert Evans as follows (here insert the deposition) - And no further evidence
was given on either side

Neither party requring a jury, the court refered
the cause to three auditors, and the evidence being
submitted to them; and thereupon the court
instructed the auditors that "there is no

evidance due of an account stated, except
the receipt.” to which instruction the plaintiff
excepted

Thereupon the Auditors made their
report, finding the first issue for the plaintiff,
& the second for the defendant, and the
defendant withdrew his third plea.

The plaintiff moved the Court to set
aside the report of the auditors & for a
new trial, and filed the following reasons

1.The auditors decided against the evidence
in the cause.

2.The auditors against law

3.The court misdirected the auditors, in this
that - "there there is no evidence in the cause
of an account stated, except the receipt .

Which motion the court overruled, and
gave judgment for the defendant; to which
proceeding & judgment, the plaintiff excepts,
and tenders this his bill of exceptions

L E Lawless

Bill of exceptions

filed April 16th 1835 A Gamble Clk

State of Missouri sct: At a supreme court begun and held at the city of St Louis in the County
of Saint Louis within and for the third Judicial District of the State of Missouri on the third
Monday of October being the nineteenth day of said month in the year of our Lord One
thousand Eight Hundred and thirty five were present the Honarable Mathias Mc Girk
George Tompkins and Robert Wash Judges of said Court Beverly Allen Esquire Circuit
attorney James Brotherton Esquire Sheriff of the County of Saint Louis and Joseph C Brown Clerk-Cout adjourned from day to day until Wednesday 28th October 1835

Wednesday 28th October 1835
Court met pursuant to Adjournment present all the Judges

Error to Saint Louis Circuit Court

Now at this day come again the parties aforesaid by their
respective attorneys aforesaid and the court now here being sufficiently advised of and
concerning the premises consider that the Judgment aforesaid inform aforesaid by the
said circuit court rendered be reversed and for nought held and esteemed and it is
further considered that the said cause be remanded to the said circuit court for further
proceedings therein in conformity with the opininon of this court delivered in this case
and that the said Joseph Cunningham administrator of David Cunningham deceased
recover against the said William Sublette the defendant in error his costs and charges
by him about the prosecution of his writ of error in this behalf expended and that
he have therof execution

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

This was an action of Assumpsit brought by the plaintiff Cunningham
against Sublette 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 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. Smith , Jackson and Sublette the defendant entered into partnership in the
fur trade and that David Cunningham the intestate was in their employment. Sometime
in the year 1827 while Cunningham 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 Smith one of the above named firm about the affairs of the intestate and
that Smith answered him that the deceased had been doing very well, we (the said firm) owe him eleven hundred dollars. This took place according to that witness in the
lodge of the defendant and of Smith in the mountains. Sometime in the month of October
1830 the defendant and said Smith both being in the town of St Louis , The plaintiff in this
action had a settlement as administrator of D Cunningham with Smith 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 Smith 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 Smith , 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 Smith himself was
mistaken in the calculation of the amount due to the deceased. The Circuit 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 McGirkG Tompkins R Wash

State of Missouri sct, I Joseph C Brown Clerk of the Supreme Court for the third Judicial District of the State of Missouri do
Certify that the above and foregoing is a true copy of the Judgment rendered and of the opinion delivered by said court at the
October term thereof in the year One thousand Eight hundred and thirty five in the case of Joseph Cunningham Ad-
ministrator of David Cunningham deceased against William Sublette on a writ of Error to the Circuit Court of the county
of Saint Louis in said Stateas the same now remain of Record in my office

In Testimony whereof I have hereunto set my Hand and
affixed the seal of the said Court at Office in the City of St Louis
in the county of Saint Louis District and State aforesaid this
Second day of November in the year of Our Lord One thousand
Eight hundred and thirty five and of the Independence of the
United States of America the Sixtieth-

Joseph C Brown Clerk

Judgement & opinion Court

Transcript -$ 0.93Certificate -0.50Tax -0.62 1/2$ 2.05 1/2

Filed 9th November 1835

The jury find for the defendant
St Louis April 5th 1837