| Ind. | Dec 3, 1858
Attachment suit by William S. Reed against Francis G. Lewis. Judgment below for the plaintiff.
It appears that Lewis was a non-resident of this state; that he was administrator of the estate of John G. Stavffer, deceased; that said Stavffer, at his death, held a title-bond for a tract of land situate in Elkhart county, Indiana, on which he had made partial payment; that said Leiuis procured an order from the Elkhart Court of Common Pleas for the sale of said title-bond in the course of administration; that he directed his attorneys, Lowry and Irwin, to negotiate the sale for him; that they undertook to do so, and entered into a written agreement with William S. Reed, they acting as agents for Lewis, for the sale to him of said title-bond, and received from him, as a first payment, 375 dollars. They did not have the bond in possession at the making of the agreement, and did not assign or deliver it to Reed, but agreed for its subsequent transfer to him. It turned out that in making the contract with Reed, they represented and sold to him the bond as being for a different tract of land from what it in fact was, and, hence, could not fulfill their agreement with him, by assigning to him a bond for the land described in their agreement. Reed, in this suit, sought to recover back the amount paid by him at the making of the contract.. Lewis being a non-resident, the suit was commenced by attachment, and Lowry and Irwin, the agents of Lewis,
The defendant, Lewis, demurred to the complaint on two grounds—
1. That it showed that the Court of Common Pleas had no jurisdiction, because the title to real estate was in issue.
2. That the contract with Lewis was void, because an administrator could not appoint an agent.
The Court overruled the demurrer, and, the defendant refusing to answer further, judgment was rendered against him for the 375 dollars. He appealed to the Supreme Court.
The Court below their proceeded to examine the case of the garnishees, and finding that they had the money in their hands, as agents of Lewis, to whom .they admitted they were to pay it, the Court gave the usual judgment in such case against them. From this judgment no appeal was taken.
It is very clear that the title to real estate was not in issue. The subject-matter of sale was not land, but a title-bond. No allegation is made in the complaint as to the title to land. The allegation is that a title-bond for a certain piece of land was sold, when no such title-bond existed.
Touching the second ground of demurrer, we are clear that, as a general proposition of law, it is erroneous. There can be no doubt that an administrator may appoint an agent to do particular acts. He can employ an attorney. If he is authorized by the Court to sell goods at public sale, he can appoint an auctioneer to sell them. If he is thus authorized to sell property at private sale, he can appoint an agent to negotiate the sale within the limits fixed by the Court, which sale he might approve and report to the Court for ratification. So of other particular acts. See 2 Williams on Ex’rs, 1271. And in this case, if the agents had actually paid over to Lewis the amount paid to them as the first installment, he would
' Another position is taken by counsel in this case — viz., that Lewis should have been sued, if at all, as administrator, and not in his individual capacity. A foreign administrator is liable to be proceeded against by attachment (2 R. S. p. 66, § 167); and perhaps the complaint in this case might well be regarded as against Lewis in that capacity. If so, the judgment against him personally could be amended in this Court.
But if the contract of his agents is to be considered as his, as it did not relate to the subject-matter about which, as administrator, he was empowered to negotiate, he would be personally responsible. On the other hand, if his agents exceeded or departed from the authority given to them by him, they, and not the administrator, might be liable. Perhaps this suit should more properly have been for money had and received against the agents. See Balls v. Haines, supra. But as the complaint alleges that the agents acted by the authority of the administrator, and there is no answer denying the allegation, and the case has not been put upon the ground we have suggested, and ultimate justice, in any view, has been reached by the judgment against the agents as garnishees, which is to be applied in payment of the judgment against the principal, the judgment below will be affirmed.
Per Gwriam. — The judgment is affirmed, with 1 per cent, damages and costs.