Gliddon v. McKinstry , 25 Ala. 246 ( 1854 )

GOLDTHWAITE, J. —

We regard the second count as averring, in substance, that the defendant had obtained a judgment in his own name against certain persons, and agreed in writing to pay a specified amount of this judgment to the plaintiff. If he had agreed, upon a valid consideration, to pay the plaintiff a certain sum out of a note due to himself when collected, the promisor would be required to use reasonable diligence in the collection of the debt, and he would be liable if the fund, out of which the payment was to be made, was lost by his neglect. Diligence, in such case, would be implied as a term of the contract. — Ogden v. Sanders, 12 Wheat. 341; White v. Snell, 9 Pick. 16; Story on Con., §§ 11, 12. The party to whom the debt was owing, and who was invested with its direction and control, would, under such circumstances, be regarded in chancery as the trustee for the beneficial owner, and should be chargeable at law, whenever the form of the transaction will admit the application of a legal remedy, precisely upon the same principles which would hold him responsible in equity. Here the intendment is, that the defendant controlled the judgment in his own favor ; and as that was the source from which he promised to make the payment, he was impliedly bound to use due diligence to collect that fund.

It is urged, however, that the count is defective, for the reason that it does not appear that the plaintiff would be entitled to the amount to be paid out of the judgment, if that amount only was collected. The order hero was drawn by Cuthbert, who at its date was entitled to the entire proceeds of the judgment; and it cannot be doubted, that if a party, entitled to the proceeds of a debt in the hands of another, appoints a portion of it to be paid to a third person, that such person has a preference right over the assignor, to the portion assigned him.

It is also insisted, that the count is defective, in not showing in what respect the defendant had failed to use due diligence. The rule requires the acts or omissions which make the liability to be alleged, that the defendant may be enabled to prepare his defence, and the court to see the liability ; but it is not always required that the pleader should go into particulars, and set out every constituent of the act or omission. Thus, in an action by the endorsee against the drawer of a bill of exchange, it is not necessary to aver specifically the notice given. The general allegation, that he had notice, is sufficient. — Boot v. Franklin, 3 John. 208. Here the want of due diligence is essential; but the allegation of the want of such diligence, in general terms, or, what is tantamount to it, that the defendant failed to collect the judgment from mere neglect on his part, is enough to enable the court to see the liability, and to pronounce judgment, and the party guilty of the omission must be presumed to know the particular facts of which the omission consists. — Elredge v. Long Island R. R. Co., 1 Sand. Sup. Ct. Rep. 89; White v. Snell, supra.

It follows from what we have said, that the court below erred in sustaining the demurrer to the second count.

Judgment reversed, and cause remanded.