Gaudy v. Babbitt , 56 Ga. 640 ( 1876 )

Bleckley, Judge.

1. The general rule stated in I Parsons on Contracts, 121, and in Story on Bills, sections 74, 75, that a trustee cannot bind the trust by executing a note, has not been relaxed in this state as to executors, administrators or guardians: 39 Georgia Reports, 130; McFarlin vs. Stinson, 56th Ibid., 396. But in 25 Georgia Reports, 140, a distinction is taken, as to the ordinary trustees, which ought to be maintained. On principle, it is difficult to say why a trustee who can contract a debt at all, cannot do so by note. Why should there be a capacity to make a verbal promise and not a written one? It is, however, not necessary to search for principle when we have a decided case which is both authoritative and satisfactory. The note before us is not so explicit as that recited in the case to which we refer; but it is signed by Gaudy, with the addition of trustee to his name, and is declared upon as made in his representative character; and there is no denial of its execution, though the authority to execute it as trustee is denied. The sworn plea which presents this point is, in effect, a mere demurrer. We think the note was admissible in evidence, and so rule.

2. But it fell far short of making out the plaintiffs’ case. And the parol evidence superadded was only to the effect that Gaudy was trustee for Mrs. Gaudy, and that the note was given for yarns bought by him for her. The terms of the trust were not shown, so as to disclose to the court and jury what were its scope and purpose; who, if any, besides Mrs. Gaudy, were the benficiaries, or what, if any, restrictions were imposed on the trustee’s power. Neither did it appear of what the trust estate consisted, or what was its value, or whether it yielded an income, or whether encroachment upon the corpus would be necessary or proper. Neither did the condition in life, the circumstances or the wants of Mrs. Gaudy appear. While, under section 3377 of the Code, a claim against a trust estate may be enforced at law, the plaintiff, by his pleadings and proof, must make a case in which a court of equity would administer the relief prayed for. To do this where supplies are furnished for the beneficiary, the plaintiff must go much further than the proof went in this case. If any plea were necessary to impose this burden, the general issue, which was in on oath, would be quite sufficient: See 54 Georgia Reports, 117. But to establish his equity is a part of the plaintiff’s case, and he must adduce full and satisfactory evidence on every material point, even where there is no plea whatever. The court erred in charging the jury that allegations in the declaration not specially denied, need not be proved. And- the evidence was insufficient to warrant the verdict.

Judgment reversed.