State Ex Rel. Chipley v. Albea

53 N.C. 204

• Court: Supreme Court of North Carolina
• Decided: December 5, 1860
• Status: Published

Opinion

Pearson, C. J.

This Court is of opinion that the action can be maintained on the relation of Ohipley, for two reasons.

1. The contract to collect the debt was made with Ohipley. The receipt is evidence of this fact. The note was received from him, and the undertaking to collect, on the part of Albea, was made with him.

2. The beneficial interest, in the debt, vested in Ohipley, by the dealing between him and Wilson. He received the note as collateral security, and was entitled to whatever sum could be realized out of it. Had the officer, by the exercise of proper diligence, collected the money, Ohipley had a right to receive it, and it became his money. So, as a matter of course, the negligence of the officer affected his interest, and he was the “party grieved.” The circumstance, that he had the right to fall back on Wilson, in the event that the money was not collected, does not vary the question, because he had a right to receive the money, m the first instance, for his own use, and cannot be treated merely as an agent of Wilson. There is error. Venire de novo.

Per Curiam,

Judgment reversed.