34 Miss. 372 | Miss. | 1857
delivered the opinion of the court.
This suit was founded upon the receipt or written acknowledgment of the defendant, which is in the following words :—
“ I have in my possession claims on various individuals, amounting to between four and five -hundred dollars, being the residue of collaterals transferred to me by Wm. II. Wheeler, on account of claims due from-■ to G. M. Ragsdale, for between nine and ten hundred dollars. Now, the first above-mentioned I am to endeavor to. collect, and if collected, pay the same on a claim or claims now*384 sued on in the Circuit Court of Monroe county, Mississippi, against Moore & Ragsdale.”
The defendant demurred to the complaint, assigning several causes of demurrer. The demurrer was overruled, and the defendant filed two pleas or answers. The first was a general denial of the allegations of the complaint. The second alleged a want of consideration in the instrument sued on. The cause was submitted to the jury; and, upon the introduction of the plaintiffs’ evidence, a demurrer was filed thereto. The plaintiffs joined in the demurrer, and the issue was decided adversely to the defendant, and judgment accordingly was rendered against him.
The first question to be considered is, whether the court erred in overruling the demurrer to the complaint.
The grounds assumed in support of the demurrer, are: 1. That the complaint does not set out and describe, with sufficient certainty, the several claims referred to in the instrument sued upon; and 2. That the said instrument imports upon its face to be voluntary, and that no consideration is averred in the complaint. There were other special causes of demurrer assigned, but these appear to be, mainly, relied on.
The defendant, by his written acknowledgment, was in the possession of claims upon various individuals, which he was bound, if practicable, to collect, and to apply in payment of the joint debt of himself and the plaintiffs’ intestate. When he failed, from negligence, to collect the. claims, or having collected them, failed to apply the proceeds, as stipulated, a right of action would accrue in behalf of the intestate.
The complaint avers that the claims were valid claims against good and solvent men, and that they were not collected and paid, nor any part of them, upon the claims in suit against Moore & Ragsdale. The special facts in reference to those claims, must be supposed to lie exclusively within the knowledge of the defendant, and for that reason less particularity of statement was required in the complaint than would otherwise have been necessary. Gould’s PI. 183, sec. 32. The suit was brought to recover the whole of the claims; for failing entirely to collect and apply any part of the proceeds; and, as it was, not essential, in order to enable the party to make his defence, that the complaint should have contained a
The objection, based upon the alleged want of consideration in the instrument, and the absence of any averment of consideration in the complaint, is also untenable.
It was wholly immaterial whether the agreement to collect the claims, and apply the proceeds, was voluntary, or whether it was made upon an express and valuable consideration. The duty arising from the relation existing between the parties was, unquestionably, sufficient to sustain the agreement, whether the defendant was to receive compensation for his services or not. If the agreement was merely voluntary, he was bound to use only ordinary diligence in its performance; but, whether he was bound to strict or ordinary diligence, the right of action accrued in consequence of the violation of a duty incident to the relation of principal and agent. To entitle the plaintiffs to a recovery, it is only necessary for them to prove, that the claims were placed in the possession of the defendant, and that he failed,-through negligence, to collect them; or that, having collected them, he failed to apply the proceeds according to the terms of his acknowledgment. It was, therefore, unnecessary to allege, in the complaint, any consideration for the undertaking.
The next question involves the propriety of the judgment on the demurrer to the evidence.
In reference to which, it is only necessary to state that, in our opinion, the evidence for the plaintiffs fully justified the decision of the court.
Judgment affirmed.
