Strickland v. Burns

COLLIER, C. J. The general issue, or other plea in bar, it is said admits the character in which the plaintiff sues, to be such as is set out in the declaration. Carpenter & Rose v. Whitman, 15 Johns. Rep. 208; State Treasurer v. Wiggins, 1 McC. Rep. 468; Floyd v. Breckenridge, 4 Bibb’s R. 14; Henderson’s adm’r v. Clark, 4 Bibb’s Rep. 391; Thomas v. Tanner, 6 Monr. Rep. 52; Champlin v. Tilley, 3 Day’s Rep. 303; Harper v. Distrahan, 2 Mart. Rep. N. S. 389; Conrad v. Atlantic Ins. Co. 1 Pet. Rep. 388; Society of, &c. v. Paulet, 4 Pet. Rep. 480; Whittington v. Farmers’ Bank, &c. 5 Har. & J. Rep. 489. In assumpsit by the as-signee or trustee of an insolvent, it is not incumbent on the plaintiff to establish his right to sue in the character in which he describes himself, if the defendant pleads the general issue. Best v. Strong, 2 Wend. Rep. 319; Winchester v. U. Bank of Maryland, 2 G. & Johns. Rep. 73. So it has been held in action by husband and wife, the general issue admits the marriage. Buffer’s N. P. 20. In Coombs and wife v. Williams, 15 Mass. Rep. 243, which was assumpsit on a promissory note made to the wife when sole — averring the intermarriage of the plaintiffs since the date of the note.' The defendant offered to prove that the husband had a former wife living when he married the payee of the note, and the court rejected the evidence upon the ground that the defence should have been pleaded in abatement. [514] This view of the law shows that if the declaration had described the plaintiffs as husband and wife, and disclosed a cause of action for which the latter might have sued alone, if sole, it would not be incumbent on the plaintiffs, under the issues, to prove their marriage, nor would it be allowable for the defendant to controvert it. But such is not the predicament of the cause — the plaintiffs, both in the writ and declaration, describe themselves by name, without reference to' any particular relation as existing between them ; and the liability of the defendant is charged to be to them jointly. The bill of exceptions is entitled “Barnabas Strickland and Eliza Ann Strickland, his wife, v. George G. Burns;” but the proof recited, shows that the transaction out of which the cause of action originated, was between the female plaintiff and the defendant, and that the defendant was liable to her alone. It cannot, in this posture of the case, be assumed that the plaintiffs sued as husband and wife, and that this relation was proved to exist between them. The caption of the bill of exceptions cannot be regarded as proof of the fact it states— but must be treated as the recital merely of the counsel who drew the bill. In this view, the question is, whether in a joint action by two plaintiffs, it is sufficient to prove a liability to one ? It is said to be perfectly well established that a misjoinder of plaintiffs is a ground of non-suit, and is a fatal variance at the trial, as also is a joinder of too many defendants; but that the omission of a party who jointly promised, must be pleaded in abatement. Where the action is brought by several or against several, it must appear either that the promise was so expressly made, or that the plaintiffs in the one case,, or the defendants in the other, were partners, and that the contract was made in behalf of all; this is a consequence which usually follows from proof of the partnership itself. 2 Starkie’s Ev. 45, 6th Am. ed.; Baker v. Jewell, 6 Mass. Rep. 460; Kenan v. Starke and another, 6 Ala. Rep. 773; 1 Chit. Plead. 13, 14, 20, 23, 307, 452, 9th Am. ed. This being the law, it was clearly competent for the circuit court to instruct the jury, that the evidence did not support the cause of action disclosed in the declaration. Even where the defendant has fraudulently possessed him [515] self of the plaintiff’s goods, the latter may in some instances waive the tort, and treat him as a purchaser. Lamb v. Clark, 5 Pick. Rep. 193; Miller v. Miller, 7 Id. 133. In Whitwell et al. v. Vincent, 4 Pick. Rep. 449, it was held, that if a person without authority sell goods belonging to another, and receive a negotiable note in payment, the owner may waive the tort and bring an action against him for money had and received, to recover the proceeds of the sale. See Willet v. Willet, 3 Watts’s Rep. 277; Webster v. Drinkwater, 5 Greenleaf’s Rep. 319; Stackett v. Watkins’s adm’r, 2 G. & Johns. Rep. 343. So, where a tenant in common sold trees growing on the land, it was decided that he was liable in an action for money had and received, if he received payment either in money, goods, or real estate. Miller et al. v. Miller, 7 Pick. Rep. 133. To entitle the plaintiff to maintain an action for money had and received, it is not indispensable for him to prove that money actually came to the defendant’s hands. Where property, either real or personal, is received as money, or as money’s worth, the plaiutiff may elect so to treat it, and recover accordingly. Stewart v. Conner, 9 Ala. Rep. 803. Thus, where an insurance broker having received in an account with an underwriter for a loss upon a policy, whereupon the name of the underwriter was erased from the policy, it was holden that the principal might maintain an action for money had and received against the broker, although he had not actually received any money from the underwriter ; for the broker having deprived the plaintiff of his remedy against the underwriter, and having received credit in account for money, he was estopped from saying he had not the sum in his hands for the plaintiff’s use. Andrew v. Robinson, 3 Camp. Rep. 199. So, where a person buying three pieces of goods, had double pieces delivered to him by mistake, which he never returned, it was decided that the vendor might recover the difference of value, in assumpsit for money had and received. Bours and another v. Watson, Const. Rep. So. Caro. 195. See also Fairbanks v. Blackington, 9 Pick. Rep. 93. In the case at bar, the defendant was the agent of the female plaintiff, for the collection of two promissory notes, of which she was the payee — instead of collecting them of the [516] maker, as his authority required, he negotiates them with a third person in the purchase of land, mules and horses for his own benefit. By thus disposing of the notes, the defendant made himself the plaintiff’s debtor, if the latter elected thus to treat him; and he cannot now insist that he wrongfully disposed of them, and what he received for them has not been converted into money. As it respects the plaintiff, the land and other property may be regarded as money, and the defendant would be estopped from setting up the reverse as a defence, if the action was properly brought. But for the defectiveness of the proceedings as it respects the right of the plaintiffs, or the want of adaptation of the proof to the declaration, the judgment must be affirmed.