Bryan v. Wilson

RICE, J. The right of the appellants to revise the action of the court below, in allowing the amendment of the complaint, was waived' by their filing pleas to the amended complaint, without making any objection to the leave to amend, or to the amendment itself. Such points cannot be raised for the first time in this court, but must be made in the primary court, and presented by exception duly taken ; as was done in Leaird v. Moore, decided at the present term. Until the Code went into effect, the general rule was observed, that an action for the breach of a contract must be brought in the name of the person having the legal interest in it. — Fortune v. Brazier, 10 Ala. 791. But section 2129 of the Code provides, that “ Every action founded upon a promissory note, bond, or other contract, express or implied, for the payment of money, must be prosecuted in the name of the party really interested, whether he have the legal title or not,” &c. Before the Code took effect, a plea by the makers of a promissory note, in a r suit thereon by the payee, that “ the plaintiff is not the party really interested in said note”, would have been held bad on demurrer.- — Bancroft v. Paine, 15 Ala. 834. But under the section of the Code above cited, we are constrained to hold that such a plea is good in bar, even in a suit brought in the name of the payee of a promissory note. We doom it just to say, that when the payee takes issue on such plea, the mere introduction of the note as evidence will make out a prima facie case for him; for where a note is payable to the plaintiff, it is an admission that he is entitled to receive the amount thereof. — Grigsby v. Nance, 3 Ala. 347. An agent may have a special interest or property in a promissory note given to him for money of his principal, which he has lent without authority; and whenever he has such interest or property in such note, he may sue upon it.— Tompkies v. Reynolds, 17 Ala. 109. [215] The general rule, that an agent shall not sue on contracts made by him in the name and on the behalf of his principal, is admitted. But there are several classes o£ cases, where the agent acquires personal rights, and may maintain an action upon the contract in his own name, without any distinction, whether his principal is, or is not, entitled also to similar rights and remedies on the same contract. One of these classes is, where the promise is in writing, and ma»de to the agent by name, as well as description of office. Another class is, where the agent has made a contract, in the subject-matter of which he has a special interest or property, whether he professed at the time to be acting for himself or not.- — Story on Agency, § 393; Fortune v. Brazier, 10 Ala. 791; Bancroft v. Paine, 15 ib. 834; Nabors v. Shippey, 15 ib. 293. In Tompkies v. Reynolds, 17 Ala. 109, it was held, that if an executor or administrator lends the money or choses in action of the estate, without authority to do so, it is a conversion for which he becomes personally liable, and he may in such case sue on the written contract in his own name, notwithstanding he has resigned or been removed from the administration, unless it be shown that he has. in some way been discharged from the liability thus incurred. It was further held, that those representing the estate had the right (if they elected so to do) to interpose, in a proper manner, to arrest the payment to the removed executor, and claim the contract as a portion of the estate. In Sorrelle v. Elmes, 6 Ala. 706, it was held, that pleas which amount to nothing more than a denial of an execution of the note sued on, in such a manner as to be binding on the defendant, are bad, unless they are verified by the affidavit required by the statute. The pleas in this case are not verified by any affidavit. There is no averment in any of them, that the plaintiff has been discharged from the- liability which he may have incurred in consequence of acting without authority, as alleged in some of the pleas. It is not shown or averred that his action has been repudiated by the lodge, or that his authority has been revoked by it, or that it has refused to approve of his conduct in taking the note sued on. It is not averred in the third, fourth, fifth, .sixth or seventh plea, that the plaintiff has no interest in the note. [216] We think the principles on which the cases of Tomkies v. Reynolds and Sorrelle v. Elmes, above cited, were decided, may well be applied to the present case; and that under the application of these principles, .the third, fourth, fifth and sixth pleas are bad. — Fletcher v. Edson, 8 Vermont R. 294. The seventh plea is bad, because it does not constitute a defence to the extent to which it professes to go. It professes and undertakes to answer the action, and to constitute a bar as to all the defendants; but in truth it makes no answer as to one of the defendants. — Deshler v. Hodges, 3 Ala. 509. We do not wish to be understood as deciding that there is no other valid objection to the third, fourth, fifth, sixth and seventh pleas, than we have above specified. Without examining any other objections to them than those above shown, we decide that they arc bad, and that the court below did not err in sustaining the demurrers to them. For the error in sustaining the demurrer to the second plea, the judgment is reversed, and the cause remanded.