Davis v. Davis

93 Ala. 173 | Ala. | 1890

STONE, C. J.

— This is the second appeal in this case. Garrett, adm'r, v. Trabue, Davis & Co., 82 Ala. 227. Pending the suit in the Circuit Court, Trabue, one of the plaintiffs, died. Much more than eighteen months afterwards his death was suggested, and an order was made continuing the cause on the docket in the names of the survivors. It was contended in the court below, and the contention is renewed here, that the death of one of the plaintiffs rendered a revivor necessary; and inasmuch as no steps w?ere taken looking to such revivor until alter the eighteen months expired, it is claimed that the Circuit Court should have declared the suit abated.

The suit was commenced by three persons, styling themselves partners. One of the three died, leaving two survivors. This was in no sense a change of the parties so. as to necessitate a revivor. Such event in the history of a suit by partners does not abate the suit. All it does is. to cast the alleged title and legal ownership of the chattel or chose in action, the subject of the suit, on the survivors, who continue the prosecution of the suit in their own names, as was rightly done in this case. There is nothing in this objection. — Phœnix Ins. Co. v. Moog, 81 Ala. 335.

The suit was brought by Trabue, Davis & Co., a partnership •composed of James Trabue, Wm. A. Davis and Richard Trabue, against the personal representative of Mrs. Eliza A. F. Lane. The suit was on an account for merchandise sold. The firm of Trabue, Davis & Co. failed, and made an assignment of its entire effects to Humphrey & Boyle, assignees, in trust that, “after defraying the expenses of conducting and executing this trust, including a reasonable compensation to the trustees and their counsel, they shall distribute and pay-said assets, or their proceeds, to the creditors of the said Trabue, Davis & Co., in accordance with their legal and equitable rights, giving such priorities only as exist by law.” After this assignment was made, the defendant pleaded the making of the same puis darrein continioance against the further maintenance of the suit by the present plaintiffs. The ground on which this defense is rested is, that having parted with all interest in the claim, Trabue, Davis & Co. should not be permitted to enforce its collection, but that Humphrey & Boyle, the assignees, are alone entitled to the money. The Circuit Court struck out this defense as frivolous.

When a party to a pending suit dies, our statutes make provision for reviving the suit in the name of the legal successor to the title. So, in case the plaintiff or defendant is adjudged a bankrupt, the statute clothes his assignee with the option of having himself substituted as a party in place of the adjudged bankrupt; in which event the suit progresses, not in the name of the original party, but in the name of his assignee. But the law makes no provision for a revivor, or for the substitution of one party for another, in a case circumstanced as the present one is. There is no process known to our jurisprudence by which Humphrey and Boyle can be made to take the place in this suit now occupied by Trabue, Davis & Co. Nor have we found, or been referred to any case, in which the defense here relied on was successfully invoked. The question is not entirely new in this court. — Dolberry v. Trice, 49 Ala. 207; Neilson v. Slade, Ib. 253; Mason v. Hall. 30 Ala. 599; Shotwell v. Gilkey, 31 Ala. 724; 1 Amer. & Eng. Ency. of Law, 844.

We agree with the Circuit Court in holding that the defense attempted by the pleas .puis darrein continuance is no answer to the suit. Should a case arise in which the assignor of a claim in suit attempts to interfere with its prosecution, or to divert its proceeds from the trust, we do not doubt the power and duty of the court to make and enforce any order that may become necessary for the preservation of the trust fund, and its ultimate application to the purposes of the trust. And the judgment rendered in such suit, unless tainted with fraud or collusion, would be binding on the trustee and on the beneficiaries. In a case like the present one, the assignment accomplishes its purpose by conveying to the assignee the fruits of the suit.

The competency of the witness Russell to testify against Mrs. Lane’s estate, as to a transaction in which he claimed to have acted as her agent by and with her authority, was one of the contested questions on the former appeal. It was then held that he was a competent witness.— Garrett v. Trabue, Davis & Co., 82 Ala. 227. This question was again reserved on the last trial, and we are urged to review and reverse our former ruling. Russell, the witness, is not a party to this suit. Nor is it shown or pretended that Mrs. Lane, the decedent, at the time of the transaction to which Rnssell was called to testify, “acted in any representative or fiduciary relation” to any one. — Code of 1886, § 2765. There is nothing in the letter of the statute which makes him incompetent.

We hold there is nothing in this objection. Before the enactment. of the statute declaring “there must be no exclusion of any witness because he is a party, or interested in the issue tried,” with certain exceptions, the agent was a competent witness to prove his authority, in all cases in which that authority was conferred by oral appointment. This rule was, to some extent, founded in public convenience, and necessity. 1 Green. Ev., § 416. “Otherwise,” says this standard author, “affairs of daily and ordinary occurrence could not be proved, and the freedom of trade and commercial intercourse would be inconveniently restrained. . . . Thus, a porter, a journeyman, or salesman, is admissible to prove the delivery of goods. A broker, who has effected a policy, is a competent witness for the assured, to prove any matters connected with the policy; even though he had an interest in it arising from his lien. A factor, who sells for the plaintiff, and is to have a poundage on the amount, is a competent witness to prove the contract of sale. So, though he is to have for himself all he has bargained for beyond a certain amount, he is still a competent witness for the seller. A clerk, who has received money, is a competent witness for the party who paid it, to prove the payment, though he is himself, liable for the receipt of it. A carrier is admissible for the plaintiff, to prove that he paid a sum of money to the defendant by mistake, in an action to recover it back. So of a banker’s clerk. . . And an agent is also a competent witness to prove his own authority, if it be by parol.”

We have thus shown that Russell would have been a competent witness to prove the facts he testified to, even before the enactment of our' statute.' — Code of 1886, § 2765. The whole purpose of that enactment was, to relieve persons of disability to give evidence, on the ground that they were parties to the suit, or interested in the result. It would be strange if we were to hold that a statute, enacted with this intent, had the effect of rendering incompetent on the ground of interest persons who were adj udged competent to testify before and independent of its provisions.

We adhere to the ruling made on the former appeal, that Mrs. Lane’s death on May 16, not communicated to plaintiffs, did not, per se, absolve her estate from liability to pay for the merchandise ordered by the agent on the ,15th, although the goods were not, in fact, shipped until after her death.

All other rulings of the court on the introduction or exclusion of testimony are free from error.

The testimony tended to show that Mrs. Lane had several plantations which were cultivated by tenants, and that she made advances to her tenants to enable them to make crops. The testimony further tended to show that Russell was Mrs. Lane’s agent to procure and distribute the supplies to the tenants ; and that with her knowledge, he, Russell, charged the tenants on the advances so made to them, 10 per cent, on the wholesale prices at which he purchased the supplies, and that he, Russell, on his own personal account, got the benefit of this 10 per cent, profit. Russell testified, that Trabue, Davis & Co. knew oí his intention to charge the tenants 10 per cent, profit, and that he, Russell, was to have the benefit of it. On this phase of the testimony, the defendant requested written charges to the jury, which asserted that such arrangement, unless Mrs. Lane was notified of it, would entitle defendant to a verdict. These charges were refused, and defendant excepted.

These charges ignore all inquiry as to whether Russell was the authorized agent of Mrs. Lane to make the purchases, and thus found her right to a verdict solely on the ground that Russell was personally to reap the 10 per cent, profit on the resale, and that Trabue, Davis & Co. had notice of that fact. If Russell, while filling the relation of agent to Mrs. Lane, without her knowledge and consent secured to himself a side or incidental profit, this was a breach of trust on his part, and would authorize her to demand and recover from him whatever he so realized. It could have no effect, however, on plaintiffs’ right of recovery. The success of their suit depended on proof by them that Russell was the authorized agent of Mrs. Lane to make the purchases, and that he executed the agency by making the purchases. The charges were rightfully refused.

Affirmed.

McClellan and Walker, JJ. not sitting.