Vaughan v. Dean

By the Court.— Lyon, J., delivering the opinion. 1. The first point made in the record is, that the Court erred in admitting the testimony of the witness, James Hambrick, and the exemplification of the bill, answer and decree rendered thereon in the equity cause of a portion of the heirs-at-law of William B. Anderson, deceased, against the defendant and two others, as the administrators of that estate, which was filed for distribution and account. We do not see that this testimony was absolutely necessary to a recovery by the plaintiff, as the right to recover ivas established by -other and better proof, as we shall hereafter show, but the testimony so offered was not objectionable on the score of relevancy or otherwise that we can see. It was pertinent and relevant. It established that the drawer of the order sued upon, Sarah McGuire, was a distributee of that estate, and that upon the defendants own admission the amount due to her as distributee, and in the hands of the defendant, was fully as much as the amount of the order sued upon. 2. The next question made was the refusal of the Court to award a non-suit on the motion of plaintiff in error. We think the motion was properly refused, for upon the evidence the plaintiff was clearly entitled to a recovery. The paper sued upon was in the following words: “ GEORGIA— HeICalb County. Mr. Alexander Vaughan, one of the administrators of William B. Anderson, deceased : You will please assume the payment of $80 00 to Lemuel Dean, the amount to [506] make me equal in the division of the negro property, and this, my order, shall be good against me for that amount and interest. This 10th May, 1852. her [Signed] “SARAH M MoGUIRE. mark. “ Test. T. M. Dean. “I hereby assume the payment of the within order. "When the money is collected, I promise to settle this order. This 15th May, 1852. his [Signed] “ALEXANDER M VAUGHAN.” mark. “Test. H. H. Dean. This acceptance of the order and promise to settle it when he collected the money, was an admission that Sarah McGuire was a distributee of the estate; that he had this amount due to iler in his hands and, that he would pay it to Lemuel Dean when he collected the money. The acceptance and promise was made on the 15th May, 1852, and this suit was not brought until the April Term, 1858, of DeKalb Superior Court, nearly six years after the promise was made. This was ample time for the collection of the money. See Sneed vs. Woolbright, 5 Ga. R., 167. Add to this the fact, as appears by the exemplification of the record in evidence, that the debts out of which this money was to be collected were created by the sale of the intestate’s property by the defendant and his co-administrator, which they were bound to collect or account for, and the right of the plaintiff to recover was complete. There was no promise to pay on demand—hence then no necessity for a demand to have been averred or proven. 3. There was no error in the charge of the Court, that the fact of there being no verdict or decree in favor of Sarah McGuire, was no evidence of there being nothing in the hands of defendant belonging to her, provided she was dead at the time and her estate not represented. Of course, if she was not a party to that decree, and she could not be— [507] being dead and her estate unrepresented—neither she, nor one claiming under her, could be effected by the decree. There was another reason why the decree did not, nor could not affect this plaintiff’s right to a recovery in this course of action, and that is, his assumption to pay this amount to Lemuel Lean before that decree operated as a payment of that amount to Sarah McGuire,, and as a credit to him as against her on that account, and she could not have had a decree for this amount against the administrator, for she had transferred it to Lean, and the defendant had recognized the sufficiency of such transfer by his written promise to pay it. For the reasons already given, the verdict was not against law or evidence, or the weight thereof, and the Court below did not err in refusing the motion for a new trial. Let the judgment be affirmed.