McLeod v. Powe , 12 Ala. 9 ( 1847 )

GOLDTHWAITE, J.

1. The pleader here, instead of relying on the general allegations that the defendants have received money to his use or admitted their indebtedness by an account stated, has preferred to state the facts from which, he deduces their indebtedness as a legal conclusion. We are not aware of any sufficient reason why this course may not be pursued, as, when all is said against it, no other question is presented by the denyrrrer.than would be if the same facts were shown in evidence and a general charge demanded as to their snfficiency to entitle the plaintiff to recover on the common counts. We shall therefore proceed to consider whether the facts stated authorise the party in suing the defendants personally, and not in their representative character.

2. The result of the allegations is, that the plaintiff’s testator entered into a contract to convey the title to certain slaves to the defendant’s intestate, if a certain sum of money was paid him at a certain time — that this money was tendered by the defendants, as administrators, to the plaintiff as executor — that it was refused by him — and that this refusal had the effect to destroy his title as executor to the slaves, as well as to vest them in the defendants as'administrators’of their intestate. The legal question presented is, whether the defendants by this act of tender are to be held responsible in their individual capacity for the money which the plaintiff then refused to accept, but which he subsequently demanded.

There is ho question that the effect of the tender was to revest the title to the slaves agreed to be conveyed on the payment of the specified sum at the appointed time. This is the one of the points decided in Sewall v. Henry, 9 Ala. Rep. 24. The consequence of the reinvesting of the title is. that the plaintiff by the same act became invested with the title to the money. Thus, in Lamb v. Lathrop, 13 Wend. 95, there had been a contract to deliver specific articles, and although the court considered the contract was at an end when the articles were tendered, yet they held the effect of the tender and refusal was to create the relation of bailor and bailee between the parties. By the tender in this case the money which previously belonged to the estate of Smith became the property of the estate of Gordon, and the defendants, after the tender, held it, not in their capacity of administrators of Smith, but as individual bailees of the plaintiff as executor of Gordon. In this view it seems clear the action is sustainable against the defendants as individual bailees of the money, and that as such they are responsible to the executor of Gordon.

Judgment reversed and cause remanded.