Frank v. Thompson

COLEMAN, J. F. P. Thompson and the defendant, W. A. Thompson, executed their promissory note to the plaintiff, Joe Frank. The evidence tends to show, that the note was given for a loan of .money made to W. A. Thompson. F. P. Thompson died, and W. A. Thompson duly qualified as his administrator. The plaintiff sued W. A. Thompson individually and alone upon the debt. The evidence tended to show that the plaintiff, Joe Frank, and W. A. Thompson, administrator, entered into an agreement by which W. A. Thompson turned over to the plaintiff certain assets of the estate of F. P. Thompson in payment of the note, and that they were received by him as a payment of the note. One of the questions raised by the pleadings and by instructions of the court to the jury is, whether an agreement by which an administrator turns over personal property of his intestate to his own creditor in payment of his debt, and which is received by the creditor in payment, is in law binding upon the creditor. We do not doubt the correctness of the ruling of the court, in holding that such an agreement, fully executed, is binding upon the administrator and the creditor. The title to the personal property descended to and vested in the administrator. The distributees of the estate, or creditors, other than plaintiff, probably an administrator. de bonis non, might elect to avoid such a transaction, and hold the creditor liable for assets thus received, or may let the transaction stand, and charge the administrator for a devastavit. Certainly a creditor who has received and retains the personal assets of an intestate from the personal representative of the decedent in payment of a debt, can not be heard to say his debt has not been paid.— Woods v. Legg, 91 Ala. 511; Hopper v. Steele, 18 Ala. 836; Swink v. Snodgrass, 17 Ala. 653; Kavanaugh v. Thompson, 16 Ala. [219] 818. The instructions given to the jury by the learned court cover the whole law of the case, and are free from error. The court did not err in refusing charge No. 9 requested by the plaintiff. The charge as written at least was calculated to mislead, in that it made the ownership of deceased to the assets turned over to plaintiff, depend upon his ownership of the saloons, or one of them. The word saloon as used here might have been construed to include more than the business and assets. The proper issue was whether the assets turned over and received by plaintiff were assets of the estate of Frank P. Thompson. The witness G. A. Thompson testified to a conversation he heard between the deceased and plaintiff, a short time before the death of the deceased, in which he said that F. P. Thompson stated to plaintiff, that he was going out to his father’s to stay until he got well and that he would be back in fifteen days, and that deceased “requested the plaintiff to take charge of his business, or the business, until he returned and to furnish ' such things as were needed in the saloons, and to keep a strict account of it until his return.” We are of opinion that the facts are sufficient to authorize the inference that the conversation testified to by the witness E. B. McCary was the same as that testified to by G. A. Thompson. In addition to what Thompson testified, McCary testified, that plaintiff replied to F. P. Thompson “to go home and stay until he got well, and he would attend to the business while he was gone.” When plaintiff was being examined in his own behalf, his counsel, referring to the conversation testified to by G. A. Thompson, asked him “to state what occurred in that conversation,” to which question the court sustained an objection. The assignment of error based upon this ruling of the court presents a question not free from difficulty. Parties in civil suits are made competent witnesses, except that neither party shall be allowed to testify against the other as to any transaction with, or statement by any deceased person, whose estate is interested in the result of the suit, unless called to testify thereto by the opposite party. — Code, § 2765. We do not think the statute would exclude a party, against whom such evidence had been offered as that given by Thompson and McCary, from saying whether he had such a conversation, or from [220] stating what he did say in such conversation, or explanatory of it. His evidence, however, should be limited to the credibility of the witnesses or weight to be given to the evidence of the witnesses testifying to the conversation, and should not be considered by the jury as establishing as true any fact testified to by the party as having been stated by him in the conversation. We think the distinction clear, and the jury should be properly instructed, as to how far it was to be considered by them. We think the question, “State what occurredin that conversation,” too broad. The witness might have answered in response as to some transaction with the deceased prohibited by statute, and not simply as contradictory or in qualification of the statement made by Thompson. It should have been limited strictly to the statements of the witnesses. Under this view, the court did not err in sustaining an objection to the question. The court erred in sustaining an objection to the question propounded on cross-examination to the witness Shelton. This witness had testified on direct examination that he rented to F. P. Thompson the saloon in which the business was carried on. It was competent to show that at the time of making the rental contract, F. P. Thompson stated that plaintiff was interested with him in the business. As an independent proposition, it was competent for the defendant to prove declarations of F. P. Thompson, while in possession, and carrying on the business, that it was his business, that it belonged to him, and equally competent to show by his declarations that the plaintiff was interested in the business, or that the business did not belong to him. Moreover, it was a prat of the res gestae of the renting, and admissible on this ground. The form given in a Code for a plea of payment is very brief. It is only necessary to aver, that the defendant had paid the debt, for which the suit was brought, before the action was commenced. All necessary facts to constitute a payment, are implied in these averments. So when a plea of payment avers that the debt was paid from the goods of the debtor, or the assets of the estate, this averment implies that the goods were received by the creditor, under an agreement that they were taken in payment. Unless the proof shows this, the plea of payment is not sus [221] tained. The court did not err in overruling a demurrer to the plea. We find no error in the record, except the single one of excluding the question to the witness Shelton. Reversed and remanded.