Pleasants v. Erskine , 82 Ala. 386 ( 1886 )

STONE, C. J.

— -By amendment of the complaint, this became a suit in favor of Samuel J. Pleasants, plaintiff, and Susan C. Ersldne, defendant. The plaintiff died, and the suit was revived in the name of his widow as administratrix. These are the sole parties to the record. The right of recovery is based on certain promises to pay money, styled in the complaint bonds, because they were executed with the signature and seal of the maker, although, in fact, mere money obligations. Among the defenses set up were sworn pleas, that the said bonds were not the property of plaintiff, and that plaintiff was not the party really and beneficially interested in the maintenance of the suit on said bonds.

The bonds upon which this suit claims a recovery are dated January 14, 1860, and are payable to James J. Pleas-ants. These bonds, together with other money obligations not pertinent to this suit, were, on March 30, 1871, placed by James J. Pleasants in the hands of Robert Pleasants, and his receipt taken therefor, specifying the purpose for which they were turned over to him. As to some of the notes or bonds, the receipt is in the following language : “Received in settlement of my interest in the estate .of James J..Pleasants, the following claims,” describing them. The James J. Pleasants here spoken of was the father of James J. and Robert, who were making the settlement. The language of the receipt, as to the bonds here in suit, is as follows : “And on the following claims I am to pay my brother Sam [plaintiff’s intestate] one-fourth interest of the net collections.” This is the entire interest the plaintiff shows herself entitled to, in the bonds on which this suit founded.

1. If the plaintiff, suing alone, can maintain this action at all, it is by virtue of our statute, which directs that on contracts for the payment of money, the suit “ must be prosecuted in the name of the party really interested, whether he has the legal title or not,” — Code of 1876, § 2890. In the absence of that statute, only the person having the legal title to the bond, could maintain an action upon it.

We hold, that the present action can not be maintained, for .the following, among other reasons : The contract, by which James J. Pleasants turned the bonds over to Robert, did not, and does not, clothe Sam, plaintiff’s intestate, with the real interest. It confers on him only a partial interest, one-fourth' interest in tbe net collections. Where a contract is one and single for the payment of a gross sum of money, it can. not, without the consent of the promisor, be so altered as to make it several, for the payment of parts of it to different persons separately. — 1 Brick. Dig. 26, § 89; 3 II. 10, § 42.

2. The Circuit Court should not have given the general charge on the effect of the testimony, ex mero motu. The same charge verbatim was afterwards given, and rightly given, on the written request of the defendant, and this rendered the first ruling error without injury.

Affirmed.