51 Ala. 349 | Ala. | 1874
The appellant sued the appellee in assumpsit, for breach of a contract, which is set out in his complaint, in legal effect as follows: The defendant, as executor of James H. Judkins, held two notes on the plaintiff, for $1,600 each, one of which was in suit, and the other was not due. He agreed with the plaintiff to take from him as cash a note, past due, on George Judkins, for about $251, and another note on M. H. Molton and J. C. Henley, for $3,250, not due, which he promised to collect, together with a claim for improvements made by the said plaintiff on the plantation of the defendant’s testator, and a gin, gin-band, and other gear belonging to the gin, the value of which was to be determined by referees appointed by the parties. The notes and the claim were to be applied in satisfaction of the defendant’s demand, and his suit was to be dismissed. Any balance of the proceeds of the note of Molton and Henley was to be returned to the plaintiff. Performance of the agreement on. the part of the plaintiff is alleged; and the breach assigned is, that the defendant refused to comply in any respect.
The executor must do his duty to the estate he represents; but this duty will not protect him personally against any injury he may have inflicted on the appellant by his breach of agreement. The demurrer to the special count ought to have been overruled.
The judgment is reversed, and the cause remanded.