McGehee v. Slater

PETERS, C. J. All the contracts sued on are alleged to be payable to the plaintiff in his own name. The plea refers to the time of action brought. It should show that, at that time, there was no right in the plaintiff to recover, or to recover to the extent of his claim; or it should show that this right to recover had been defeated by some matter arising subsequent to the bringing of the suit. The pleas here do not show that the plaintiff is suing in the character of an administrator, but in his own right. Then, his removal as administrator cannot affect this right. It remains the same after the removal that it was before. The plaintiff is the party really interested in the suit, and as such he has the right to sue. Rev. Code, § 2523» Here, the plea shows that the plaintiff, while administrator of Sheppard’s estate, had converted a claim belonging to that estate, by a compromise, into the note in suit. In a case quite similar in principle to this, it is said by this court: “In Tomkies 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 to do so, to interpose, in a proper manner, to arrest the payment to the removed executor, and claim the contract as a portion of the estate.” Bryan v. Wilson, 27 Ala. 208, 215. This is a proper principle to apply to this case. The contrary principle, which the pleas insist upon, would compel the persons interested in the estate of Sheppard to an election of the claim on McGehee, instead of the value of the assets converted to obtain it. The pleas as presented show no sufficient defence to this action. 2. The evidence does not tend to show that the claim on Carraway was received by the plaintiff below in payment of the note or bill on McGehee, in part or whole.. The most that can be said of it is, that it was received by the plaintiff to collect, if this could be done, as the defendant’s agent, or as collateral security for the ultimate payment of McGehee’s debt. In either event, the defendant would only be entitled to recoup such damages as he had actually sustained by the plaintiff’s negligence. The proofs do not tend to establish that any such damages had accrued. The plaintiff below did not bind himself to greater diligence, than the evidence tends to show he exerted, in the duty he had undertaken to perform. ' He only bound himself to apply one half of whatever amount he might [437] be able to collect on tbe Carraway claim, as a credit on tbe defendant’s debt; and he collected nothing. And it does not appear that anything could have been collected by greater diligence, or that anything was lost by neglect. Then, there was no evidence of any payment on the claim in suit. Before Mc-Gehee will be entitled to claim damages for a failure to return the bill on Carraway, he must show what these damages are. This he has not done. I think this a reasonable construction of the contract, attempted to be proved, as set out in the bill of exceptions. It was either an agency to collect the hill on Carraway, and apply a portion of the proceeds as directed as a credit on the instrument sued on, or an agreement to hold the claim on Carraway as a collateral security for the payment of the claim in suit. The proof tends to show that Carraway became utterly insolvent before the debt on McGehee fell due; and it does not appear that the plaintiff failed to use due diligence in his efforts to collect it, or that it could have been collected at any time while it was in his hands. Without this, the plaintiff should not be held responsible for a failure to collect it. Powell, adm’r, v. Henry, 27 Ala. 612; Chilton v. Comstock, 4 Ala. 58, and cases there cited. Besides, such an attempt to assert an offset or payment on tbe claim sued on, if it were successful, would impose a loss on the estate of Sheppard, which tbe administrator could not inflict. It would make the estate of Sheppard liable to respond in damages for the acts of the administrator, wbicb is not authorized by law. In tbis view of this ease, the charges asked, as shown in the bill of exceptions, were properly refused. The judgment of tbe court below is affirmed.