164 Ga. 474 | Ga. | 1927
This case, on preliminary phases, has been twice before us. Columbia Drug Co. v. Reid, 158 Ga. 375 (123 S. E. 269); Broderick v. Reid, 159 Ga. 395 (126 S. E. 15). After an examination of the case made by the present record, we affirmed the judgment of the trial court, directing a modification in one respect. Before the remittitur was sent out, a motion for rehearing was filed. We granted a rehearing to clarify one of the rulings, and in order to deal specifically with an assignment of error made by the Columbia Drug Company. The opinion and the headnotes as originally prepared have been withdrawn, and the case is now decided upon the whole record in the light of the motion for rehearing.
The evidence authorized the findings that J. .H. Reid died intestate in January, 1917, owning a retail drug-store, the liabilities of which exceeded its assets; that for about four years prior to the death of J. H. Reid, E. E. Broderick had managed the business under a power of attorney; that after the death of Reid, Broderick continued to manage the business for about two years, under an agreement with the deceased, and later with the heirs, that the business would eventually be given to a son of Broderick; that the purpose of continuing the business by Broderick was to free it from debt as far as possible, to the end that it might become of some value to his son; that such plan was later changed, the son deciding to become a physician and not to take over the drugstore; that then Broderick advised R. S. Reid, brother of the deceased, of his desire to be relieved of the burden of managing the business, and suggested that R. S. Reid become administrator; that R. S. Reid was duly appointed temporary administrator, and obtained from the ordinary a judgment authorizing him to continue
The general rule, varied in some States by statute, is well settled that an executor or administrator who carries on a business or trade on behalf of the estate without being empowered by law to do so becomes individually answerable for all debts contracted by him while so engaged. Robert v. Tift, 60 Ga. 566; Stephens v. James, 77 Ga. 139 (3 S. E. 160). In this State there are certain statutory exceptions, but they are not applicable to the present case. Civil Code (1910), § 4012. The above rule is especially applicable, forbidding a temporary administrator to carry on such business or trade. Irvine v. Wiley, 145 Ga. 867 (90 S. E. 69); Henry v. Collins, 155 Ga. 886, 891 (118 S. E. 729), and cit. Substantially all of the authorities, however, agree that there are exceptions to the foregoing rule, or perhaps it is more accurate to say there are instances where the rule does not apply. Compare Hosher v. Fitzpatrick, 146 Ga. 525 (6) (91 S. E. 780). The authorities cited by plaintiff in error in the course of the discussion of the subject mention such cases. See 11 R. C. L. 142, § 149; 24 C. J. 59, § 3. The case of Swaine v. Hemphill, 165 Mich. 561 (131 N. W. 68, 40 L. R. A. (N. S.) 201), involved facts constituting such an instance. The facts in some particulars are strik
The same principle' is laid down in Merkel’s Estate, 131 Pa. 584 (18 Atl. 931), in which-the principle applicable to the exception is applied to creditors. So far as it has been observed, these authorities in discussing the acts of administrators we assume had reference to permanent administrators. Since permanent administrators can not carry on the business or trade of the estate without first obtaining permission from the ordinary, it appears that in the absence of such permission the same rule applies as to temporary administrators. Certainly in this State temporary administrators have no such authority as a matter of law. If the temporary administrator in this case depended for his protection upon any authority under the law as administrator, it would necessarily follow that judgment would have been rendered against him. He claims authority, however, not under any such authority givezi him by law as administrator, but solely by reason of the con
It is pointed out in the brief of plaintiff in error, Broderick, that the answer and cross-petition of Eeid contains no prayer for a judgment in his favor for any amount on account of payments made by him on the note due the bank, and that the note itself evidences a debt not due by the estate of J. H. Eeid. The answer and cross-petition was equitable in its character. It set out the facts indicated above, and contained at its conclusion a prayer for general relief. Hnder a general prayer the plaintiff may have such relief as is consistent with and entirely within the scope of the pleadings. Peek v. Wright, 65 Ga. 638; Hickson v. Mobley, 80 Ga. 314 (5 S. E. 495); Copeland v. Cheney, 116 Ga. 685, 687 (43 S. E. 59);
The third, fourth, and fifth headnotes do.not require elaboration.
Two of the heirs of J. H. Reid, who are parties in the case, are minors represented by their father as next friend. It is argued that they could not legally consent to the operation of the drugstore by R. S. Reid. Conceding this to be true, it would not, under the circumstances, alter the judgment. This is a proceeding in equity; and even if the maxim that parties coming into a court of equity must do equity is not applicable to these minors, nevertheless the evidence authorized the finding that the estate of J. H. Reid was bankrupt at the date of his death, for some time previous thereto, and continuously so thereafter; and that R. S. Reid did not take charge of the business for two years after the death of the intestate, during which time Broderick continued in charge. The auditor found that R. S. Reid had acted throughout in perfect good faith, that he received no remuneration -whatever, either in property or money, but that he sustained a considerable financial loss by reason of the rendering of his services. These findings were authorized. In these circumstances the minors as heirs have not suffered any money loss by reason of the course pursued by R. S. Reid. See the reasoning in Robert v. Tift, 60 Ga. 566, and Moore v. Lampkin, 63 Ga. 748.
While the amount involved is not large, the litigation has been vigorous and extended. A receiver was appointed, and the case was referred to an auditor, who heard evidence introduced by all parties interested. The.record evidences a painstaking hearing before the auditor and careful consideration. His findings were approved by the court below in their entirety. We have carefully examined the case, and find no error except as indicated in the fifth headnote. If there are other instances which would seem to indicate that a contrary finding should be made, they are unimportant and are
Judgment affirmed, with direction.