Hardie v. Turner , 9 Ala. 110 ( 1846 )

COLLIER, C. J.

The defendant’s letter is an explicit admission that he received from Terry, a demand of Mrs. Turner for money due her, from her relations in Virginia ; and that he had collected in part thereof the sum of three hundred dollars. Who Mrs. Turner is, or what is her first name, is not indicated by the evidence demurred to, yet we think that the jury would have been warranted, in the absence of all opposing proof, in inferring that she was the person referred to; especially as she was in possession of the defendant’s letter to Rice, and if she was not the Mrs. Turner to whom the demand received from Terry was due, it could have been easily shown by the defendant. This point being settled, we can conceive of no well founded objection to the sufficiency of the letter to fix the liability upon the defendant. In fact he admits the collection of $300, and though he insists upon retaining it, yet he does not pretend, either by direct assertion or otherwise, that Terry had the right to invest him with the control over, or interest in, the demand upon which the collection was made. The fair inference then, is, that the plaintiff was its rightful proprietor ; consequently, any money collected thereon, must have been received for her use, and it may be recovered by her in an action of indebitatus assumpsit. From this view it results, that the demurrer to the evidence was properly overruled.

In Young v. Foster, 7 Porter’s Rep. 420, it was said to be the most correct practice, on account of its despatch, in cases of demurrer to evidence, to assess the damages at the time the demurrer is interposed, for which the judgment will be rendered, if the demurrer is overruled. It is however competent to empannel another jury to assess damages, after the judgment on demurrer — either mode is legal. We apprehend that, no matter which' of these courses of procedure shall be adopted, the rights of the parties 'are unaffected, and the same rules apply in the admission ,of evidence.

The defendant does not appear to have been the agent of the plaintiff, or at any time recognized by her as such. He collected her money because the claim was placed in his hands by Terry, to indemnify, him against the consequences of his suretyship for the latter.' In the condition in which the case is presented in the record, it does not appear that Terry had any authority to dispose of the claim, or in any manner to interfere with it. The defendant then, cannot charge the plaintiff for his trouble and expenses in collecting it. Perhaps she may have preferred to collect the money in some other way, and it is probable she could have received it when she desired, without incurring any charge. Be this as it may, it is enough that it does not appear, that the defendant was authorised to represent her, or that his agency has begn adopted by her.

The judgment of the Court is consequently affirmed.