18 Ala. 232 | Ala. | 1850
This was an action of assumpsit, brought by Archibald Henderson, the defendant in error, against the plaintiffs in error, as the administrators of Alex. B. Forney, deceased, to recover certain monies alleged to have been collected by their intestate upon certain notes placed in his hands, and for which notes said intestate gave a receipt, which is set out in the declaration ip these words: “ Received of J. C. McConnaughy for A. Henderson, the following notes for collection — four notes on W. F. Bird as principal, and M. J. Relph and B. J. Relph, as securities, for forty dollars each, dated 3d January 1846, and due six months after date, payable to Alex. Hender son, agent, or order, also, one note on same parties for seven hundred and fifty dollars, due first January 1847, (without security) which I promise to collect or return. This 22d January 1847, (signed) A. B. Forney.”
The defendant pleaded, first, non-assumpsit, second, “that the notes described in the receipt of said Forney, were given by the makers thereof to the plaintiff as the agent of one Royden». and that the consideration of said notes was property of the said Royden, sold by the said plaintiff as the agent, and for and in the name of said Royden, and that said receipt declared on was
An agent to whom a note is payable may maintain an action in his own name upon it, and there is no difference in principle between such a case and the present. The obligation to collect or return the notes is to the plaintiff, and the obligation to pay the money when received on the notes, and which grows out of and forms in law a part of the obligation of the receipt, is also to him. He is therefore entitled to the action, and the demurrer was properly sustained. — Story on Agency, § 394; Paley, 361. This case is unlike The Branch Bank at Montgomery v. Sydnor, use, &c., 7 Ala. 308. In this there is an express agreement to collect the money specified in the notes for the plaintiff, or return the notes to him. In that, the law implied an obligation on the part of the Bank to pay the money demanded, and this legal implication could only be to the true owner thereof.
2. The plaintiff below offered the maker©f four of the notes embraced in the receipt of Forney, to prove he paid said notes to said Forney after the execution of said receipt He was objected to as interested, but the objection was overruled, and he was admitted to prove such payment. The plaintiffs in error, having excepted to this decision of the court, present the same to this court as the only remaining point for our revision. There are several decisions which maintain the competency of this witness, which are collected on the brief of the counsel for the defendant in error, and the strong inclination of the courts in modern times seems to be to admit witnesses to testify in all cases where they can do so without impugning some stern rule of law, letting the objection to such witness go to their credibility and not to their competency. But we think this desire to arrive at the proof without so much regard to the medium through which it is communicated must not be pushed so far as to break down those most salutary rules which the experience of centuries has shown to be of the last importance in the administration of justice. The general rule requires that witnesses 'who
In Beane v. Pearsall, 12 Ala. 592, it was said not to follow in all cases, where the record could not be used as evidence either for or against the witness in another suit, that he was competent. “He might still have a certain, immediate and direct interest in the event of the suit, as he must have in all cases where he is offered for the plaintiff, and by enabling the plaintiff to recover, prevent a suit from being brought against himself.” The case above differs from this iri the fact that the witness of* fered to prove the payment was an agent to make the payment1
Without, however, citing to the numerous and conflicting authorities, which serve more to bewilder the mind than satisfactorily to elucidate the subject, we prefer to rest our decision •upon principle. The plaintiff in this case avers that Forney collected the notes specified in the receipt declared upon. If he did collect them, then the maker of the notes is discharged, and uo. action can be maintained by the plaintiff or his principal against the witness. If the notes remain unpaid, then the witness is liable to the suit of the plaintiff for their collection. The payment of the notes was the sole issue to be tried, and if upon that issue being found for the plaintiff, he succeeded in recovering the money, his demand is satisfied, and the witness relieved ■from suit at his instance. Fie is then immediately interested in effecting a recovery by the plaintiff. My brethren are fully satisfied with the correctness of this conclusion. For myself, 1 confess I have had some difficulty in attaining it, and adopt it not ■without some misgivings as to its correctness. The witness was therefore improperly admitted. Let the jndgment be reversed and the cause remanded.