Wood v. Claiborne

Riddick, J., (after stating the facts.) This is an appeal from a judgment rendered against them in the circuit court in favor of plaintiff for money recovered by defendants for him during his minority and paid by them to his' father for him. There are only two questions presented by the appeal that it is necessary to notice. First, was the payment of the money to D. W. Claiborne, the father of the plaintiff, for him during his minority unauthorized? Second, does the fact that the plaintiff previously brought an action and recovered a judgment against his father cut off his right to bring this action against defendants? • As to the first question: It was decided in Sparkman v. Roberts, 61 Ark. 26, that a parent as the natural guardian of an infant before the execution of a bond as such guardian had no authority to receive money due the infant. Although D. W. Claiborne, the father of the plaintiff, appeared as his next friend in the action in which the judgment for the money was recovered, yet under our statute a next friend has no authority to receive the money of an infant recovered in the action brought by him for the infant. Our statute provides that “any person may bring the action of an infant as his next friend; but the court has power to dismiss it if it is not for the benefit of the infant, or to substitute the guardian of the infant or another person as the next friend.” Kirby’s Digest, § 6021. Under this statute any person may bring a suit as the next friend of an infant without giving bond, and to allow the next friend to receive the money of the infant collected upon the judgment recovered in such actions would subject the estates of infants to spoliation by irresponsible parties appearing as their next friend. We have seen that the statute does not permit even the father or mother of an infant to take charge of his estate without first giving bond as guardian of the infant. There is nothing in the statute that confers such authority upon the next friend of an infant, and we are of the opinion that he has no such authority. Miles v. Kaigler, 10 Yerg. (Tenn.) 10, 30 Am. Dec. 425; Allen v. Roundtree, 1 Speers, L. (S. C.) 80; Klaus v. State, 54 Miss. 646; Gulf R. Co. v. Styron, 66 Tex. 421; 14 Enc. Plead. & Prac. 1037. We have examined this question, though the point was not raised by brief of counsel, for the reason that we felt some doubt as to whether an attorney was not justified in paying the money recovered for an infant in an action brought by him by his father as his next friend, but our conclusion is that under a statute like ours such a payment is unauthorized. The next question, and the one that has been urged with much force by counsel for appellant, is that the plaintiff, by first bringing an action against his father to recover the money paid to him, has elected to ratify the act of the defendants in paying the money to his father, and can not now maintain an action against the defendants for making such payments. This argu« ment is based on the contention that the prosecution of an action against his father to recover the money paid by defendants to him is inconsistent with a claim for damages against the defendant for making .the payment. The rule is well settled that a plaintiff will not be permitted to prosecute two inconsistent actions. For instance, if one brings an action and recovers juudgment for the price of a hor.se which he claims to have sold to the defendant, he can not afterwards bring replevin to recover the horse on the ground that he never in fact sold it. So the question here is whether the present action against defendants is inconsistent with the action previously brought against his father. After á careful consideration of that question, we are of the opinion that these actions were not inconsistent. The relation between an attorney and a client for whom he has collected money is not that of debtor and creditor, but that of principal and agent. Wallis v. State, 54 Ark. 611. The client for whom the money was collected in the former suit was the infant, and not the next friend. When the money was collected, the defendants held it as the agent of the plaintiff. If they wrongfully disposed of it, the plaintiff was not required to elect whether he would sue the defendants for the unlawful conversion of the money or the party to whom it was paid. He had the right to follow the fund and to bring an action against any one into whose hands it came with notice of plaintiff’s rights, without relieving his agents of liability for having wrongfully disposed of the money belonging to him. To maintain the action against the party receiving the money, plaintiff did not have to condone the act of the agent in making the payment or admit that the payment was properly made. On the contrary, his contention is that the payment by the agent was unlawful, and that both the agent and the party receiving the money are liable. “All actions which proceed upon the theory that the title to property remains in plaintiff are naturally inconsistent with those which proceed upon the theory that title has passed to defendant. But there is no inconsistency between different remedial rights all of which are based upon claim of title to property in plaintiff.” 15 Cyc. 258, 259. Now, both of the actions instituted by plaintiff in this case are based on the theory that the money paid by defendants to his father belonged to plaintiff. In the action against his father his contention was that his father had received the money of plaintiff, and that, whether wrongfully received or not, he should pay it to plaintiff. In this action he contends that "the payment of his money by defendants to his father was without authority, and that, as he has not been able to recover it from his father, the defendants should pay it. If an agent without authority pays money of his principal to an irresponsible person, who squanders it, the principal can recover it from the agent; and it is no defense for the agent to show that the principal first endeavored to collect it from the person to whom it was paid, Fowler v. Bowery Savings Bank, 113 N. Y. 450, 10 Am. St. Rep. 479, 4 L. R. A. 145; Vance v. Kirk, 20 W. Va. 344. But there is a distinction .between the case of an agent who pays money of his principal in that way and a debtor who pays money to a third person to be paid to the creditor for the debtor. If the person fails to pay the creditor as he promised the debtor to do, the creditor may elect to treat the debt as unpaid and hold the debtor, or he may ratify the act of the debtor and sue the other party, for the money, but he can not do both; and when he brings his action against one, he loses his right to hold the other responsible. This distinction is clearly pointed out in the case of Fowler v. Bowery Savings Bank, above referred to, and the reason why the creditor can not sue the party to whom his debtor has paid money for him without losing his right to sue the debtor therefor is that the money paid by the debtor in that case belongs to the debtor, .and it remains his money until the creditor ratifies the payment. The creditor has no right of action against such third party until he ratifies the payment, for, as before stated, until he does so the money belongs to the debtor, who must bear the loss if the money is hot paid. The creditor is not in law injured by the nonpayment, for his debt is not affected. It follows therefore that, if the creditor elects to treat the money paid to the third party as belonging to him and brings suit for it, he can not afterwards sue the original debtor, for as -soon as the money becomes the property of the creditor the debt is discharged. After having brought an action and recovered a judgment against the party to whom the debtor paid the money for the creditor, the creditor can not afterwards sue the debtor for the debt, for by the first action the creditor has admitted that the debt was paid, and that the title of the money has passed to him. The two actions are inconsistent, and one is a bar to the other. But in this case the relation between the defendants and plaintiff was not that of debtor and creditor,-but of agent and principal. They did not pay their own money to the father of plaintiff in the attempt to discharge a debt which they owed the plaintiff, but they paid out his own money which they held as his agents. If the money was paid without authority, he had at once a right of action both against the agents and the party who received it with notice of his rights. To bar the right of action of plaintiff against his agents, they must show, not only the recovery of a judgment by him against his father, but that the judgment has been satisfied. In other words, it must be shown that plaintiff has received his money or the value thereof. Fowler v. Bowery Savings Bank, 113 N. Y. 450, 10 Am. St. Rep. 479; Vance v. Kirk, 29 W. Va. 344; First Nat. Bank v. Wallis, 84 Hun (N. Y.), 376; Carew v. Lillienthall, 50 Ala. 44; Crossman v. Universal R. Co., 127 N. Y. 34; Equitable Life Ass. Society v. May, 82 Ga. 646; 28 Am. & Eng. Enc. Law, 1120, and cases cited. Having reached the conclusion that the money of the plaintiff held by the defendants as his agents was wrongfully paid out by them, and. that the former action brought by plaintiff against his father is not inconsistent with the present action against defendants, and that the claim of plaintiff has not been satisfied, it follows .that he is on the undisputed facts entitled to a judgment. The question as to whether the plaintiff was of age or not at the time the first action was brought is not under this view of the case material, nor under this view can the statement of counsel of plaintiff made in the opening argument to which objection was made be considered as prejudicial. But the court below not only gave the judgment against the defendants for the money collected by them, but for interest thereon from the time it was paid to the father of the plaintiff. Now, if the defendants had retained this money in their possession, they would not have been liable for interest until demand therefor. 4 Cyc. 970. Acting in perfect good faith, defendants paid the money collected by them to the father of plaintiff. As the plaintiff was at that time a minor, the money could not lawfully have been paid to him; and, as he had no regular guardian, it follows, if plaintiff’s contention is sound, that the defendants should have retained the money until he arrived of age and demanded it. If they had done that, he would not have been entitled to interest, in the absence of any showing that the defendants had used the money. But it is certain that they did not use it, for it is admitted that they turned it over to his father. The defendants, no doubt, supposed that the money would be disposed of by the father for the benefit of plaintiff in some lawful way, or that it would be kept for the plaintiff and turned over to him upon his arrival of age. Until they were notified of the default of the father, they had no reason to suppose that payment would be required of them, and they were not in default until demand for”-the money was made on them. So the only damage plaintiff has suffered is the failure to pay him his money with interest from the time he demanded it after he came of age, which was when this action was commenced. The judgment of the circuit court will be modified so as to allow plaintiff judgment for one thousand dollars with interest from the commencement of this action, and affirmed with that modification. It is so ordered.