Mayo v. . Dawson

Allen, J. • This action is to recover certain money, which i't is alleged the defendant collected on 'sales made by him, under an agreement with L. E. Mayo, deceased. The plaintiff contends that he is entitled to recover, because L. E. Mayo, who was the owner, prior to his death transferred to him the accounts and leases held against persons to whom sales had been made, or, if this is not established, that he is the owner of the leases and accounts under the will of L. E. Mayo. There is no suggestion in the evidence that L. E. Mayo transferred to the plaintiff any claim against the defendant for any money collected prior to' the time it is alleged the accounts and leases-were transferred, and it therefore became necessary for the plaintiff, in order to sustain his allegation of ownership, other than under the will, to offer evidence of an assignment to him prior to his father’s death, and that the defendant had collected money on the accounts and leases'after such assignment. The testimony of the plaintiff of his possession of the books, accounts, 'and leases, and of Ms conversations with the defendant, furnishes some evidence of ownership, but there is no evidence that the defendant collected any money after the plaintiff became the owner. It is true the defendant admits certain collections, which he says he accounted for, but no dates are given, and it is impossi *79 ble for us to see that they were made when the plaintiff had the right to demand payment of him, and the rule requiring us to consider the evidence in the light most favorable to the plaintiff on a judgment of nonsuit does not authorize us to supply evidence. We are of opinion, therefore, the plaintiff cannot maintain his action on this title, and he is not entitled to recover under the will, because if the accounts and leases were not transferred prior to the death óf L. E. Mayo, the right to recover thereon is in his executor. Blankenship v. Hunt, 76 N. C., 377; Rogers v. Gooch, 87 N. C., 442. Affirmed.