[800]*800
Judgment reversed in part.
The action was for money had and received. The plaintiff- introduced the testimony of himself and of D. L. Henderson, as follows: The defendant employed Henderson as his attorney in October, 1890, to foreclose a mortgage which defendant had upon the crops of one Pollock, giving Henderson full control of the case both as agent and attorney, telling him to do> whatever he thought best in the matter. Henderson foreclosed the mortgage, and a levy was made on certain crops.' Before sale of the property, a distress warrant for $83.20 was sworn out by plaintiff as Pollock’s landlord, and was placed in the levying officer’s hands.; whereupon Henderson told plaintiff that if he would withdraw lxis distress warrant and stop the sale, he should be paid out of the first proceeds of the property: Upon this agreement he withdrew the warrant and looked for his money to the defendant to whom the crop was delivered. Plaintiff demanded payment of defendant, but it was refused. Henderson was. acting both as agent and attorney for the defendant,, and as such he entered into written agreement with' plaintiff that he should be paid the full amount of his- claim. The plaintiff offered this agreement in evidence; but the justice rejected it, holding that plaintiff- would have to prove by defendant that defendant gave Henderson special authority to make it, and that it was not related to the case in which Henderson was employed as agent and attorney. This agreement, as attached to the petition for certiorari, is: “ R. L. Barfield, through his attorney D. L. Henderson, agrees that Mat McCombs shall be paid out of the first proceeds of Coleman Pollock’s crop, after the costs are paidthe amount of Mat McCombs’ claim being $79.70, seventy-nine and seventy one-hundredths dollars, and five bushels oats at 70 cents per bushel=f>3.50. B. L. Barfield,
per D. L. Henderson, his attorney-at-law.”
The assignments of error in the petition for certiorari were (1) on the rulings of the justice as to the written agreement; and (2) that the verdict of the jury was contrary to law and the evidence.
The defendant excepted to the answer of the justice, alleging that it was incomplete in the following particulars : (1) Defendant moved to dismiss the case because the original summons did not recite in what G. M. district defendant resided, and for that reason failed to give jurisdiction to the court, and notwithstanding there was no offer to amend the summons, this motion was overruled, and the answer fails to show this. (2) The justice has failed to send up the pleadings and record in the case. (3) The answer fails to state that the “ defendant moved to rule out all evidence of the plaintiff that went to show that defendant had received any property of plaintiff, the suit being an assumpsit for money had and received, and founded upon a written agreement for the payment of a certain amount of money, which was unconditional and for a certain amount, and which was made and signed by D. L. Henderson as attorney at law of defendant, which motion ■was overruled by the court, and said evidence was allowed to go to the jury; all of which defendant specifies as material to said case.” These exceptions were overruled.
The remaining assignment of error is upon the rendition of the final judgment “ in the absence of the record from the . . justice’s court, . . plaintiff contending at the time that there were facts involved in the case that would require a new trial in the justice’s court.”
Busbee & Crum, for plaintiff' in error.
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