Lewis v. Peck , 10 Ala. 142 ( 1846 )

GOLDTHWAITE, J.

The defendants cite Gunn v. Cantine, 10 John. 387, as a strong authority for the principle for which they insist, and it certainly is so, being almost identical in its facts. But that decision seems irreconcilable with well recognized principles, and we are not aware it has elsewhere been held, the plaintiff must have a beneficial interest in the money to be collected when he has possession of the thing contracted for, and the contract is made in his name. Auctioneers, factors, or brokers, may or may not have a beneficial interest, as their contract may be, and yet it has never been decided they may not sue in their own names, unless the principal directs the payment to be made to himself. Williams v. Millington, 1 H. Black. 84, is a leading case on this subject, and there the only Judge who doubted the universality of the rule, rests the right of the agent to bring the action, on his possession of the thing contracted about. Although he concedes the right of the principal to bring the action if he will, and to prevent the payment to the agent, yet says the defendant has no right to put an owner forward to prevent the auctioneer from having his remedy. We do not doubt that this is the principle which governs all cases, in which either principal or agent may sue.

The receipt which the defendants executed made them quoad the money in controversy, the agents of the plaintiffs as they had possession of the note by which it was due, and which furnished the evidence to collect it. The true owner might doubtless intercept it by showing the agency of the plaintiffs, but until this right is asserted, the defendants are accountable to their immediate principals. So too if the money was equitably coming to Boyd, it is very possible the payment to him might be a discharge to the defendants, except so far as the plaintiffs had an interest. Instead of this, it is clear the note was the property of Trevor,, and that the legal title was invested in him by the indorsement in blank. Between the defendants and him, there is no privity whatever, until he ratifies the act of the plaintiffs in selecting them as his attornies. Until that ratification is made, and his right to receive the money from them is insisted, they are responsible to the plaintiffs upon the contract to collect the money, or in other words, in the language of Mr. Justice Wilson, borrowed from the case of Williams v. Millington, they have no right to put him forward as the owner, to defeat the plaintiffs of their remedy.

We do not think it necessary to discuss the case of Bryant v. Owen, 1 Porter, 201, as, however the reasoning of the decision may support the defendants, the principle decided has no direct application. Nor is it requisite to show that the remittance to Boyd is no discharge of the defendants’ liability to the plaintiffs, as this in effect is abandoned by the parties, and if not abandoned, cannot be sustained.

We are satisfied the charge of the court below was erroneous. Judgment reversed and cause remanded.