Mardis' Adm'rs v. Shackleford

COLLIER, C. J. 1. It is not essential to the sufficiency of the declaration, that it should state the names, residence, &c. of the creditors of Burke, Shackleford & Co., to whom the intestate undertook to pay the money realized upon the claims placed in his hands for collection. There is nothing in the statement of the cause of action, to show that the creditors were designated, or that the undertaking was not, generally, to pay the money as collected, to those to whom Messrs B. S. & Co. were indebted. If [436] the intestate had desired the information necessary to enable him to appropriate the money, ho should have applied to the plaintiff; and if he could not thus have obtained it, perhaps it might have availed him as a defence, to prove that he was in no default; but was ready and had actually offered to perform his engagement. Be this as it may, the breach alleged, is not that the intestate did not pay over, but that he failed to collect and pay over the claims intrusted to him. If there was an entire neglect of professional duty, so that no money was realized by the intestate, he had nothing to pay the creditors, and his representatives cannot insist upon an omission to state their names, residence, &c., as a fatal defect in the pleadings. The accountability of the defendants under such a state of facts, as will be hereafter shown, would be to the plaintiff, with whom the intestate had contracted. 2. It is objected to the eighth count, that it does not describe the claims which the intestate received for collection, but merely refers to the third and seventh counts, and adopts the description contained in the third and seventh counts. The several counts of a declaration are regarded as its different parts or sections, [Step, on Plead, 267] and in framing it, unnecessary repetition should be avoided. This may be done by the counts referring to each other; but unless such reference is made, one count will not be aided by another; “for though both counts are in the same declaration, yet they are as distinct as if they were in separate declarations; and consequently, they must independently contain all necessary allegations, or the latter count must expressly refer to the former.” [I Saund. on Plead, and Ev. 417.] In Ryder v. Robins, [13 Mass. Rep. 284,] the first count concluded that the defendant, “though often requested has never paid, &c. but neglects and refuses, &c.,” but the second contained no such averment or any thing equivalent: field, that the allegation of the first, might be applied to the second count. And in Dent’s adm’r v. Scott, [3 Har. & J. Rep. 28,] it w'as considered to be sufficient for one count to set out a consideration, and for the other counts seeking to enforce a contract founded upon the same consideration to refer to it. Each count it was said, need not contain a complete declaration in itself, but by a reference to another, its defects would be supplied. The case of Maupay v. Holley, [3 Ala. Rep. 103,] is entirely consistent with the authorities cited. That was an action of assumpsit, and the [437] declaration contained two counts, in each of which the contract was stated differently. The court said, “where a declaration contains several counts, each count is considered as the statement of a different cause of action; and where issue is taken upon all, the plaintiff is entitled to recover, upon proving the allegations of either.” The citations made, are directly in point, and in recognizing them as authoritative, we necessarily attain the conclusion that the objection to the eighth count is not well taken. 3. In respect to the right of the plaintiff to maintain an action for the breach of the intestate’s contract, this we think cannot be doubted. The undertaking was, to collect the obligations and evidences of debt, and pay the amount thereon collected, to the creditors of Messrs B. S. & Co. Under this agreement, no legal right to the claims vested in the creditors, and it was only after the money had been collected, (if at all) that they could maintain an action against the intestate for the failure to pay it over.— Hitchcock, et al. v. Lukens & Son, [8 Porter’s Rep. 333] which was cited for the plaintiffs in error, is unlike the present. There, the plaintiffs were judgment creditors of a third person, who in consideration that the former and other creditors would extend the time of payment of their demands to a day designated, conveyed by deed, to the defendant, in trust, to secure the debts due to the plaintiffs and other creditors, certain property. The trustees sold a part of the property, and received about eighteen hundred dollars; to recover the amount due them, the ■ plaintiffs brought an action of assumpsit, and declared, first, on the special contract; second, for money had and received. It was shown that the plaintiffs had suspended proceedings on their judgment, and that their execution was entitled to precedence over all others, except one for two hundred dollars. The court held, that where one man has money which ex aequo et bono belongs to another, if there be no contract modifying the general liability to pay, the person entitled to the money may recover it in an action for money had and received; and this, although lie knows nothing of the party who has the right — the law itself creates the privity and the promise. In that case, the plaintiffs were entitled to the money as soon as it was collected, and being a party to the deed of trust, could have sued the trustee for neglecting to perform his duties as such. But in the present case, the undertaking to collect the notes, does not seem to have enured to the creditors; [438] they were not parties to the contract between the plaintiff and the intestate; and at most, could only claim the money when collected of the intestate or his representatives after his death. If a right of action for the failure to collect, ever vested in the creditors ofB. S. & Co., so far as the eighth count is concerned, the allegation that their demands had been satisfied by the plaintiff, would revest him with the title to the claims in the intestate’s hands, and entitle him to sue, in the form in which he has in the present case. Without extending this opinion to greater length, we would merely remark that we consider the seventh and eighth counts, as entirely unexceptionable. The judgment is consequently affirmed.