Bledsoe v. White

Moore, Associate Justice. This suit was brought by appellee, as the administrator of Lewis Jones, to recover from the appellant, as the administrator of Benjamin T. Selman, money collected by him, and his wife, as the representative of their community estate, after his death, on a note payable to E. E. Lott, administrator of Lewis Jones, deceased, or bearer, alleged to have been placed in the hands of Selman for collection, an attorney at law for said estate, by Lott, while administrator of the estate of said Lewis. The defense mainly relied upon in the court below was— First. After the said Lott had intrusted the note in question to Selman, who ivas his attorney both in his representative and individual character, said Lott transferred said note to Selman in payment of the amount due him from Lott for professional services, and that Selman accepted the note in payment and satisfaction of the amount so owing him by Lott. Second. That all the matters involved in this suit had [134] been adjudicated and determined in a suit between the same parties in the District Court of Smith county at a former term thereof. Although the note was payable to Lott, or bearer, Selman knew that it was the property of the estate, and that it had been placed in his hands as a chose in action held by Lott in his representative character, and was lo be collected by him for the benefit of the estate. It is not necessary to consider the rights of parties to whom notes of this character may have been transferred by delivery, or by assignment by the administrator in his individual name, when the holder or assignee has paid an adequate consideration, without notice that the administrator is dealing with the note for his own benefit, and not that of the estate. Such is not the case now before us. Both parties to the transaction were the representatives of the estate. Whatever may be said as to the legal right of the pay.ee to sue upon and deal with such a note as such payee, the equitable right to it, as both of these parties well knew, was in the estate, and that it was the duty of the administrator to collect it for the estate. Yet both of them knowingly and designedly dealt with and appropriated it to their individual purposes. For it is beyond dispute that almost the entire indebtedness, in payment of which it is claimed Selman received it, was the individual debt of Lott, with which the estate of Jones had no connection whatever. As appellant’s defense upon Selman’s supposed right to the money collected on the note, by virtue of the 'alleged agreement with Lott, the former administrator of Jones, is radically defective and untenable, it is unnecessary to consider or discuss the various rulings which were made in the court below on questions growing out of it. They were dependent propositions, which fell with the destruction of the foundation upon which they were based. Whatever may be our views, however, as to the merits of this defense as an original question, if it had been pre [135] viously adjudicated on its merits by a court of competent jurisdiction in a suit between the parties, however erroneous may have been the conclusion or judgment of such court, the matter cannot be litigated again in another action between the parties to the former suit or their privies. Appellant, especially in his amended answer alleging a former judgment, makes the distinct and positive averment that a former suit was prosecuted against him on the same cause of action upon which this one is brought; that it was made a question in that suit whether or not Selman was entitled to collect the same note, for the collection of which it is now sought to charge his estate for his own use, and whether he became the owner of it by the settlement.between him and Lott, and that issue was joined between the parties on this question, and the case was decided on its merits. A copy of the alleged former judgment is made a part of the answers. An inspection of the record shows that both suits were brought on claims for money presented by appellee to the representative of the estate of Selman. There is a slight difference in the amounts alleged in the claims to be due appellee’s estate; and the note upon which the money is charged to have been collected is not described precisely alike, or, indeed, with entire accuracy in either of the claims presented to appellant. But, from the description given in .them, there is little doubt that the same note is referred to in both. Appellant, in his answers in both cases, alleges, that Selman never received but one note payable to Lott as administrator of Jones. The court cannot say, as matter of law, that the defense set up in this case was or was not passed upon in the former suit upon its meVits. The record, however, shows that an issue was joined on the same defense presented in appellant’s answer in this case. In the absence of proof to the contrary, this would seem to warrant the conclusion [136] that this defense was passed upon and determined by the former judgment. (24 How., 334; 5 Wall, 566; 14 John., 377.) But it may be that, owing to the inaccuracy of the description of the note referred to in the claim upon which the suit was brought,, the case was decided without reaching the merits of appellant’s defense. But we cannot say, from the slight discrepancy in the description of the note intrusted to Selman for collection in the claims upon which the two suits are brought, and his right to the note and the money collected on it, by his settlement and agreement with Lott, may not have been passed upon and decided in the first suit; and as we cannot, we must hold that the court erred in sustaining the exceptions to appellant’s answers setting up the judgment in the former case as a bar to the present action. The issue made by these answers should have been submitted to the jury to be decided as they might find the fact to be from the record of the former trial, as explained and interpreted to them by the instruction of the court, and such extraneous evidence as might be submitted to them by the parties. The judgment is reversed and the cause remanded. Reversed and remanded.