Nelson v. Lovejoy

DARGAN, J. We do not think the evidence showed an entire failure of consideration. The plaintiff in error was to call on the defendant after letters of administration on the estate of Young was granted to him, and the defendant was to execute a receipt to him as .administrator. But it does not appear that the plaintiff ever requested the defendant, after the grant of letters to him, to execute the receipt as administrator, .or that the defendant ever declined doing it, or as administrator ever demanded of the plaintiff the debt due the estate, in-.any =other manner than to demand payment of the note. When the consideration of a note is something to be done by the. payee afterwards, the defendant does not show a failure of consideration by merely proving that the consideration was-an act to be done by the payee, upon the request of the maker ; he must go further, and show that he requested the payee to do the act, and that he failed to do it; otherwise he does not show a failure of consideration. It is true, that it w;puld be sufficient to show an incapacity on the part oí the571 payee, to do the act he promised to perform, which was the consideration, and if the payee was legally incapable of doing the act, it would be unnecessary to make the request. But it is not shown that the defendant in error was unable to give a valid receipt as the administrator of Young ; on the contrary, it is shown by the testimony introduced by the defendant, that Lovejoy was the administrator of Young, at the time the suit was brought. The authorities relied on by the plaintiff in error are not applicable. The case of Levi v. Harbin, 6 Ala. 399, only affirms the rule, that an administrator cannot maintain a suit on a note given to him as such, after he has been removed from office. It is not shown that the defendant in error was removed, but on the contrary it is shown that he was the administrator. We see no error in the refusal of the court to give the charge requested. Let the judgment be affirmed. Chilton, not sitting.