Tomkies v. Reynolds , 17 Ala. 109 ( 1849 )

LARGAN, C. J.

The question arising upon the state of the pleadings presents itself first for our consideration. The first count of the declaration is assumpsit for money lent, money had and received, &c. The second states in substance that the plaintiff as one of the executors of William Wilson, loaned to the defendants two notes on William Graham and John McNeel, amounting to seventeen hundred and fifty dollars, which they promised to collect of the makers, and if collected they would in a reasonable time pay the amount of said notes to the plaintiff with interest, and if they were not collected they would return them to him. The third alleges that the defendants made and delivered to the plaintiff their agreement in. writing, and thereby agreed and contracted that they had received of the plaintiff as one of the executors of William Wilson, deceased, two notes on William Graham and John McNeel, amounting to seventeen hundred and fifty dollars, which the defendants were to collect of the makers or return the same to the plaintiff with interest.

The fourth count avers that-the defendants were partners and it became necessary for them to borrow money, and the plaintiff as one of the executors of William Wilson, deceased, held two notes on William Graham and John McNeel, amounting to seventeen hundred and fifty dollars, and in order to procure the loan and use of the money specified in said notes the defendants proposed to the plaintiff that if he would give them the possession and use of said notes that they would undertake to collect them of the makers, and if they collected the money they would pay the amount thereof to the plaintiff with interest, on the first day of January 1839, or if they failed to collect said notes of the makers they would return them to the plaintiff. The fifth count is substantially the same as the third, and they all aver the collection of the money by the defendants of the makers.

The defendants, Hardy and Tomkies, filed sixteen pleas to this declaration. The plaintiff took issue on the four first pleas and demurred to all the others. The court sustained the demurrer. The question therefore is, whether any of the pleas demurred to are sufficient to bar the action. None of the pleas deny that the plaintiff, as one of the executors of William Wilson, loaned the notes to the defendants, but they aver that the notes described in the receipt were of the goods and chattels of the estate of William Wilson, and that there were other executors. Some of them contain the additional averment, that the receipt was returned by the plaintiff to the Orphans’ Court as a portion of the estate of the testator, and that he has since resigned his trust as executor.

1. The rule of law undoubtedly is, that when a contract is made with an executor or administrator in reference to the goods of the deceased, he may sue in his own name for a breach of it, and is not compelled to sue in his representative character.— Chitty Pl. 20; Harbin v. Levi, 6 Ala. 399; 6 East. 405. This principle of the common law is not denied by the plaintiff, but it is contended that if a contract be made with an executor or administrator in this state, in relation to the goods of the deceased,- and the money due thereon belongs to the estate or is assets in the hands of the executor, he cannot sue on this contract and recover the money after he has been removed from office, or after he has resigned, whereby his power and authority over the goods of the deceased is determined. To sustain this position the plaintiff relies on the cases of Harbin v. Levi, 6 Ala. 399, and Dunham v. Gantt, 12 Ala. 105. In the case of Harbin v. Levi, this court held that if an administrator has sold the property of his intestate but has not received the price, and he is removed from office, he cannot sue the purchaser after-wards — that the right of action is gone with the administration and passes to his successor. The case of Dunham v. Gantt affirms the same principle. We do not propose to controvert the correctness of these decisions, but in my opinion they cannot be extended to every case so as to prevent an executor or administrator who has resigned or been removed from office, from sueiugon a contract made with him in his representative character. For instance, if an executor or administrator make a contract in, reference to the assets of the estate, which would amount to a dnvastauit' and render him individually liable to the estate for the amount of money due on the contract, those interested may hold him responsible and may decline to pursue the party who contracted with the executor. Should he be denied the right to sue the party who contracted with him, because he has been removed from office, when he is individually liable to the estate for the debt that the defendant promised to pay him ? If the right to sue after his removal from office is taken from him in such a case, he and his securities may be charged with the debt, although he has not the legal right to compel the party who was benefitted by the contract to pay the money he promised. The law, in my opinion, will not and ought not to permit such a condition of things, but it should recognise principles more in unison with justice. This could be done by permitting the executor to recover, notwithstanding his removal from office, upon all contracts made by him, which would amount in law to a devastavit, unless those representing the estate would interpose in a proper manner to arrest the payment to the removed executor and claim the contract as a portion of the estate. If they did this and obtained the money from the debtor, then the executor would be discharged from liability for the waste — the defendant would pay the debt he promised to pay, and the estate would have its own. But to arm the defendant with the legal right to resist the payment of money on a contract entered into with an executor, because of his removal from office, when by the contract as alleged the executor is guilty of a devastavit and liable to be charged by the estate with the amount, might in many cases operate as a discharge of the defendant, although the executor might be compelled to account for the money. It did not appear from the evidence nor from the pleadings in the cases of Harbin and Levi, and Dunham and Gantt, that the administrator had been guilty of a devastavit in making the contract, but the proof showed that the contract was made in the sale of the personal property of the deceased in the manner prescribed by law. It is the duty of an administrator to sell the personal estate under the circumstances and in the mode pointed out by our statutes. In so doing he is pot guilty of waste, and the notes received by him, though taken in his own name, are assets of the estate and may pass upon his removal or resignation of office to his successor; and if he be in no manner liable for the amount of the notes, by virtue of the contract by which he received them, no injury will result from denying to him the right to sue on them after his authority as administrator has ceased. But if an executor or administrator make a contract which he is not by law authorised or permitted to make, he is guilty of a devastavit, and the contract may be considered as a conversion of the assets to his own use. On such a contract he ought to be permitted to sue in his own name after his removal from office. Tested by this principle the pleas were bad, for the declaration shows that the plaintiff as one of the executors of William Wilson, deceased, loaned the notes to the defendant as money. Now it is very clear that if an administrator loan out the money of the estate without authority to do so, it is a conversion of it to his own use, and he may be charged with it as for a devastavit. — 2 W’ms’ Ex’rs, 1258; Waite v. Wharwood, 2 Atkyns, 159; State v. Johnson, 7 Blackf. 529; 1 Vernon, 197; 2 Vernon, 548. Whether the pleas would have been good had they gone further and avered that the plaintiff as executor had authority to lend out the money of the estate, or that the plaintiff had been discharged from all liability on account of the contract, and that the co-executors had accepted the promise of the defendants as assets, it is unnecessary to determine. But a declaration showing a contract by an executor, which will render him liable to the estate for a conversion of the assets, in reference to which the contract was made, is not answered by a plea that shows merely that the consideration of the promise of the defendants was assets of the estate, and that the plaintiff had resigned his office as executor.

2. This view renders it unnecessary to examine each plea separately, or whether afly of them could be considered a good bar to any one of the counts, for they are all pleaded in bar of the whole declaration, and the rule of pleading is that the plea must be an answer to all it professes to answer, and if bad in part, it cannot be sustained when demurred to. — 1 Chitty PL 554. So if a plea professes to answer several counts in a declaration, and it be insufficient to bar some, a demurrer to it must be sustained. — Clark v. Schaing, 1 Dana, 33; ib. 958; Gates v. Lanisbury, 20 John. 427.

3. On the trial the plaintiff read in evidence a written contract as follows: “ Received of Walker Reynolds, as one of, the executors of William Wilson, deceased, two notes of hand on William Graham and John McNeel, amounting to seventeen hundred and fifty dollars, due the first of January 1S38, which we are to collect, or return the same to the said Reynolds, with interest from the time they were due,” — which was signed in the name of the firm by James A. Hogan, one of the partners, and bore date the 12th day of March 183S. The plaintiff also proved the collection of,the notes and the appropriation of about seven hundred dollars of the money to the payment of the debts of the firm. He also introduced one Leeper, whose testimony tended to show that the true nature of the contract between the parties was that the defendants borrowed the notes as money, if they could be collected of the makers, but if not collected, the notes were to be returned. The defendants cross-examined the witness, and proved on the cross-examination that he received the notes for collection of Hardy, one of the defendants. He then proposed to give in evidence the declarations of Hardy, made at the time he handed the notes to the witness, which tended to show that he had no interest in the notes, and that he merely acted as the agent of Hogan, his co-partner, in handing them to him for collection. To these declarations the plaintiff objected, and his objection was sustained. When this cause was before this court at a previous term, it was decided that the contract might be explained by parol proof to show its real character — whether it was intended to be a loan of money in the event it was collected from the makers, or whether it was intended that the defendants were to collect the money of the makers as the agents of the plaintiff. If the latter was the contract, then the firm was not bound, because the contract was not within the scope of the partnership authority. The declarations of Hardy were intended to show that the firm did not consider it a loan of money, but as an undertaking on the part of Hogan to collect the money for the plaintiff The general rule is, that the declarations or admissions of a party in possession are adnrissible as a part of the res gesta to show the character of his possession. But to make such declarations evidence, they must be connected with the principal fact under investigation. If the fact with which they are connected is not the material inquiry, or if the party is not sought to be charged because of the existence of the fact with which they are connected, they cannot bé admitted as evidence. On this subject the best writers say that !to make the declarations of a party evidence in his favor, they must be connected with the material fact or inquiry under investigation. — 1 Greenl. Ev. 109,158 ; 1 Phillips’ Ev. 231.— By this rule we think the declarations of Hardy were properly excluded. The material fact was not whether he had actually had the possession of the notes-or whether he handed them to the witness, but whether the contract was binding on the firm. The plaintiff did not seek to show that the contract was binding on the firm because Hardy had had possession of the notes, or because he handed them to the witness for collection, but this proof was introduced by the defendant Hardy himself, and to permit him to introduce his own declarations in connection with a fact uot relied on by the plaintiff to fix his liability, nor connected with the material fact involved, would be to enable a defendant to make his own declarations evidence in his favor, when the fact with which they are connected is not brought out by the plaintiff, nor the ground on which he is sought to be charged.

This disposes of the case; for it is clear that the transcript from ihe Orphans’ Court, showing the resignation of the plaintiff as executor since the suit was brought, could not be received as evidence under any of the pleas on which issue was joined, and the instructions of the court were in strict conformity with the decision heretofore made in this cause. The judgment must consequently be affirmed.

Chilton, J., not sitting.