Allen v. Bobo ( 1902 )

Calhoon, J.,

delivered-the opinion of the court.

By agreement of counsel on file it is shown that the original declaration of appellants was filed in 1883. This was destroyed by fire in 1887, but a substitute for it was filed in 1890. It is to be noted that this is alone for “$700 for money advanced to and laid out and expended for the use of said defendant by said plaintiffs at his special instance and request,” and that no bill of particulars appears. In 1892 appellants filed their amended declaration, the first count of which was for $700 “for goods, wares, and merchandise sold and delivered,” etc., and the second count was for $700 upon an account stated. The bill of particulars is : “ January 31st, 1881. Wortham & Co., $700.” There is no reference to any draft in either of these declarations. On October 20, 1894, appellants filed an amendment to their amended declaration, which in its first count was for $700 “for money and other property laid out and expended upon a certain draft drawn by Chas. L. Wortham & Co. in favor of J. J. Prince at the special instance and request of the said defendant, and for his use and benefit.” The second count charges the execution of the di’aft for $700 by Chas. L. Wortham & Co., at the instance and request of defendant, Bobo, and that Wortham & Co. telegraphed plaintiffs, with authority of Bobo, to pay it, and charge to Bobo ; and that plaintiffs wrote him often at his proper postoffice, requesting payment, and inclosing statements of account; and that afterwards • plaintiffs’ agent saw Bobo, and asked payment, and that he ‘£ did not deny owing said sum, but admitted same,” and promised payment “by the shipment of cotton,” but did not ship it, and so became liable to pay, and promised to do so, etc. A copy of the draft is filed as follows :

“$700. Friar’s Point, Miss., January 3d, 1881. At sight, pay to the order of J. J. Prince seven hundred dollars, at-, value received, and charge the same to account of

Chas.'L. Wortham & Co.

“To Allen, West & Bush, New Orleans, La.”

Indorsed: “Alcorn, Wortham & Co.” “Pay Jones & Prince, or order. J. J. Prince.” “Pay J. T. Fargason & Co. Jones & Prince.” “J. T. Fargason & Co.”

The defenses of Bobo are nil debet, non assumpsit, the three years’ and the six years’ statutes of limitation, and payment on full settlement with Wortham & Co. The evidence on behalf of plaintiffs — none being presented for defendant — shows that the charge of this draft to Bobo is the only instance where his name ever appeared on the books of Allen, West & Bush. It shows that when Wortham & Co. gave the draft they sent Allen, West & Bush this telegram: “Pay Prince draft. Charge same to R. E. Bobo. Also Fisher draft. Do not take up any other paper,” — and they paid and so charged it. It shows that Allen, West & Bush never had any dealings with Bobo, and had never had any communication from him ; but they did write him several letters, to none of which did they have answer, addressed to him at Friar’s Point, which is not shown to haVe been his postoffice address. It is nowhere shown that Wortham & Co. ever had any authority from him to have the draft charged to him. All the evidence was taken more than twenty, years after the draft transaction. It shows that no member of the firm of Allen, West & Bush was personally acquainted with Bobo. An agent of the firm testifies that in the winter of 1881-’82 or 1882-’83 he saw Bobo, and he says : “I was introduced to him, or introduced myself, and told him my business, and wanted to know when he would pay the claim. ... I do not know just what was said. I know he made no inquiry about the claim, but seemed to understand all about it. He said crops had been bad, and he had gotten behind, but would pay it just as soon as he was able. I think this was before suit was brought on the claim. I think it was probably a year later when he was sued, but I am not sure, about that. This is about all I remember.” Further on in his deposition he says : “He said, in substance, that he would pay when he could, but what was said I could not undertake to say. I know I was not very hopeful of a speedy payment of the claim after my talk with him. ’ ’ On this plaintiffs rested, and the court gave to the jury a peremptory instruction to find for defendant, and we think this action was proper. Wortham & Co. were liable as drawers of the draft. Their letters and telegrams to appellants could not affect Bobo. There is no evidence whatever that any one was by him authorized to order the draft charged to him, and we decline to hold him bound by the recollection of a witness, whose testimony was taken twenty years after the fact, that he orally promised to pay it “just as soon as he was able.” There being shown no original consideration whatever moving to Bobo, and no authority from him to Wortham & Co. to direct the amount of the draft to be charged to him, we regard :as conclusive of this case, and so we need not consider the Other points appearing in this record.

Affirmed.