Johnson v. Wilcox, 25 Ind. 182

Johnson v. Wilcox

25 Ind. 182 | Ind. | 1865

Gregory, J.

Suit by Julia Wilcox, executrix of Hiram Wilcox, deceased, against Hester and the appellants.

The complaint avers that the plaintiff delivered to James S. Hester and Lewis Brosser, partners, for collection, a note executed by W. S. Flaps and others, and payable to *183IJiram Wilcox, for $125, with interest from date, dated the22d of December, 1856, for which Hester $ Prosser executed their joint receipt. That Prosser died on the 3d of July, 1863. That afterward Hester received from the makers of the note $96 58. That Mary Prosser, the widow of the decedent, was appointed administratrix of her deceased husband’s estate, and that she made her final settlement on the 26th of April, 1864; making the statement in her final report that she had paid the debts of the intestate, when in fact she had not paid the debts which had come to her knowledge, and that of Hester, her attorney. That the settlement was made before the time fixed by law for the purpose of defrauding the plaintiff, and other creditors of the estate. That after the final settlement Mary Prosser intermarried with Johnson, her co-defendant. Prayer that the final settlement be set aside, for judgment against the defendant for $200, and for all other proper relief. Johnson and wife demurred to the complaint, but the demurrer was overruled. They then answered in two paragraphs. 1st. General denial. 2d. That they admit that the plaintiff placed in the hands of Hester and Prosser a note, for collection, for which they executed their joint receipt as alleged in» the complaint, and that afterward they took judgment upon the note. That after the taking of the judgment, and before any portion of the same was collected by Hester, the said Prosser departed this life. The plaintiff demurred to the second paragraph of the answer, which demurrer-was sustained. Trial by the court; finding for' the plaintiff; motion for a new trial overruled, and judgment setting aside the final settlement, and against Many Johnson, administratrix of said estate, for $96 58.

No notice is taken of Hester in the- proceedings subsequent to the complaint.

The first question presented by- the- record is, did the court below err in overruling the demurrer to the complaint? It is urged that the complaint does not aver a *184demand on the defendants for the money collected by Hester. To this it'.is answered that the allegation of fraud in making the final settlement of the estate of Prosser is sufficient excuse for not making such demand, because the law does not .require a demand on tortfeasors. It is not alleged that Hester is insolvent. He is joined in the suit with the administratrix of his deceased partner. It is true that no notice is taken of him after the filing of the complaint, hut the demurrer was to a complaint against him, as well as against Prosser’s administratrix. If it be admitted that the latter could be sued jointly-with the former for the money in question, yet it would doubtless be necessary, before commencing the action, to demand the money of the surviving partner.

The complaint shows that the money was collected by Hester after the death of Prosser. Thq relation existing between the plaintiff and Hester § Prosser was that of principal and agent; the .death of Prosser terminated the agency, and the misconduct of Hester after that event could not charge the estate of the former.

The joint receipt of Hester $ Prosser was a contract of agency only, and required of them their faithful conduct in collecting the note, and paying over the proceeds on demand to the plaintiff. This was the extent of their undertaking. The court erred .in overruling the demurrer to the complaint. This disposes of all the other questions in the record. For, if the complaint was bad, the court erred in sustaining the demurrer to .the second paragraph of the answer, if for no -other reason, because a bad answer is good enough to a bad complaint. The court erred in setting aside the final ■ settlement, because there was no cause of action shown against the estate.

We have not considered the question whether the estate of a deceased partner can be made liable before exhausting the partnership assets in the hands of the survivor.

The judgment is reversed, with costs, and the cause remaande^, with directions to the court below to sustain the *185demurrer to tbe complaint, and for further proceedings in accordance with this opinion.

G. F. McNutt, A. Ennis and W. II. Bainbridge for appellants. W. W. Browning, W. B. Harrison and W. S. Shirley, for appellee.