Davenport v. Henderson

Bleckley, Chief Justice. 1. The averments in the amendment to the declaration were, that the indebtedness of Davenport was to Oscar Thomason, and that Oscar entered into a written contract whereby he agreed that he would become the purchaser of the land, etc.; and that under this agreement the sheriff’s sale was had. The written agreement mentioned in the evidence was not by Oscar, but P. R. Thomason, and the debt embraced in the contents of the agreement was not from Davenport to Oscar, as alleged in the amendment to the declaration, but from [319] Davenport to P. R. Thomason, and it was not Oscar but P. R. who agreed to purchase the land. It thus appears that the agreement sought to be proved and used as evidencewas not the one described in the pleading, but wholly a different one, as to the party executing it, as to the creditor of Davenport for whose benefit in part it was made, and as to the person who was to purchase the land. Moreover, there was no evidence that the sheriff’s sale, which took place in 1876 under a levy made in 1873, was made under any agreement whatsoever, or that Oscar Thomason, who was the purchaser at that sale, ever knew of the agreement sought to be proved, or that he ever did or authorized any act in reference thereto. As to the agency of P. R. for Oscar, while it is shown that there was a general agency to manage property, none whatever, either general or special, is shown to purchase land, or to agree upon the terms of purchase. It does not appear that P. R. bid off this land at the sheriff’s sale for Oscar, or that he had any agency in paying the money or taking the sheriff’s deed. It is entirely consistent with all the evidence received, and with all that which was offered, to treat Oscar as having made the purchase in person, and with no aid or assistance whatever from his managing agent. Under this state of facts, we think the court ruled correctly in excluding the contents of the written agreement (the original being lost) proved to have been executed by P. R. Thomason. 2. This action was defended by Henderson as trustee for the property of R. U. Thomason. It seems to us, as it did to the court below, that the record of a suit for land not embraced in the present action, brought by P. R. Thomason, trustee of Usher and Florence Thomason, minor children of Oscar Thomason, deceased, against Mrs. Davenport, one of the plaintiffs in this action, was wholly irrelevant. That suit resulted in no [320] adjudication, but was dismissed by the person who brought it. That the sheriff's deed to Oscar Thomason was the basis of that action as well as of the defence in the present case, seems to us quite immaterial, nothing with respect to that deed having been adjudicated. There was no error in refusing a new trial. Judgment affirmed.