Hutchins v. Gilman

9 N.H. 359 | Superior Court of New Hampshire | 1838

Parker, C. J.

It is contended that Newman should have been joined in this action, but the facts do not show any joint interest. The interests were several, and several powers of attorney were executed. Each had a right to demand of Rogers the amount of his several share : and the right of action cannot be made joint by the payment of the whole sum due to both, to the defendant, in one sum, as an amount due to Brooks’ heirs. That in no way changed the plaintiff’s several claim to a joint one.

It is further suggested that the wife of the plaintiff should have been joined. A question might be made, on the other hand, whether it would not have been a valid objection if she had been joined. The estate sold, it is true, belonged to her. But when she and her husband joined in a power to sell, and it was converted into money, there is at least room to contend that the money became absolutely his, and would not survive to the wife. Bingham on Coverture 209. However this may be, it was something accruing during the coverture, of which she may be said to be the meritorious cause ; and if the wife might have been joined, the husband had the right to an election, either to join her, or sue alone. 5 N. H. R. 584, Tucker vs. Gordon; 15 Johns. 479, Decker vs. Livingston.

The defendant next denies that he is liable to the plaintiff, as he was not his agent. But Rogers, who held the money of the plaintiff, accounted with the defendant for it; and it must be regarded as placed in his hands to be paid over. The plaintiff might, perhaps, have still regarded Rogers as the party liable, and have demanded the money of him. But the defendant having accepted the money under these circumstances, the plaintiff had a right to demand it of the defendant. Hardres 321, Bell vs. Chaplain; 5 Adolphs and Ellis 548, Lilly vs. Hayes. It was the plaintiff’s money, and the case is. in this respect, unlike Butterfield vs. Hartshorn, 7 N. H. Rep. 345. But if Rogers had been indebted, and delivered his own money to the defendant, to be paid to the plaintiff, it might perhaps well be held that the plaintiff, having seen fit to make a demand of the defendant, and to follow it up by a suit, had thereby made an election to treat the defendant as his debtor, and discharged Rogers.

It is further contended, that the demand is barred by the statute of limitations. The answer to this is, that the cause of action did not accrue until a demand was made, and the statute does not begin to run until the cause, of action accrues. 1 Taunt. 572, Topham vs. Braddick; 1 Aiken's Rep. 258, Hutchinson vs. Parkhurst; 10 Johns. 285, Ferris vs. Paris.

Another position in the defence is, that here is no refusal, on which a suit can be sustained. It is alleged that the plaintiff demanded the whole sum due to himself and Newman, and that the defendant was willing to pay part. But the case was not drawn up with a view to such an exception. No point of that kind appears to have been made at the trial. If the plaintiff had demanded the whole amount, and the defendant had offered to pay what was due to the plaintiff, which the plaintiff declined taking, that would not have been a refusal on which to support an action. But the evidence did not show this. The plaintiff may have demanded the whole. The defendant refused generally to pay, but said he had rather give something than have a controversy. There was no expression of willingness to pay half to the plaintiff. The refusal to pay was not founded upon the demand being for too large a sum, but on an allegation that the defendant’s partner was owing him and had gone off.

Nor is there any validity in another suggestion, which is, that the firm of Odlin & Gilman ought to have been sued. If there had been, the objection should have been taken in abatement. But the money never came to the hands of the partnership, as it was not accounted for with the defendant until after the dissolution of the firm; and it had nothing to do with the partnership transactions. That the defendant sent the papers from Philadelphia while a partner with Odlin, did not constitute it a partnership transaction. That Rogers accounted with the defendant for the money, in the settlement of partnership accounts, after the dissolution, and that the defendant gave to Rogers a partnership receipt, does not alter the case. It is, nevertheless, a receipt of the money by the defendant, and he could have received it on no other ground than that he was to hold it for the plaintiff, and pay it over to him.

But the plaintiff can recover only his share. Although Newman and his wife constituted the plaintiff their attorney, the plaintiff did not sell. It was with power of substitution, and Rogers was substituted, and acted as if he had been the original attorney. When he paid over the money to the defendant, it was for the use of the parties to whom it belonged. If the plaintiff’s power, as attorney of Newman and wife, did not cease when he substituted Rogers, that part of the money was not his, and he could only claim from Rogers, or the defendant, as the agent or attorney of Newman, and cannot, for that part, sustain an action in his own name.

The verdict must be amended accordingly, and judgment be rendered for the plaintiff.