Wallace v. Peck

12 Ala. 768

• Court: Supreme Court of Alabama
• Decided: January 15, 1848
• Status: Published

Opinion

ORMOND, J.

We will first consider the competency of Trevor as a witness for the plaintiffs. The opinion of the witness, that he had no interest in the question, because he held the plaintiffs responsible to him, will not render him competent, if in fact he was interested. It is insisted that he had an interest, because the verdict, and judgment, would be evidence for him, in an action by the witness against the plaintiffs, and that is our opinion. It is admitted, and also established by the evidence of Trevor, that the plaintiffs are suing for this money as the agents of Trevor, it having been sent by him, to them for collection. If they recover in this action, it will be money in their hands belonging to him, and the recovery in this case, will be conclusive on them, upon the additional proof being made that the recovery was had by them as his agent, which would in fact be only proving the subject matter of the suit. That the record may be thus explained, by parol proof, is established by the decisions of this court, and of other courts of the highest authority. [Parker v. Thompson, 3 Pickering, 429; Kilheffer v. Herr, 17 S. & R. 319; Cist v. Zeigler, 16 Id. 282; Seddon v. Tutop, 6 D. & E. 607; 9 Porter, 397; 6 Ala. 27.]

In Green v. The New River Co. 4 D. & E. 589, an action was brought for an injury caused by the negligence of one of the defendant’s servants, and evidence being offered of the fact of the negligence, the defendant proposed to call the servant to whom the neglect was attributed, to prove that there was no negligence, and it was held that he was an incompetent witness, because the verdict rendered against his employer, would be conclusive in an action against him by the master, as to the quantum of damage, though not as to the fact of the injury. That appears to be the precise predicament of this case. In an action by Trevor, against the plaintiffs, upon proving that they were his agents in the collection of this money, the verdict and judgment would be conclusive of the amount in their hands belonging to him.

But the court, in its charge to the jury upon the evidence, erred. When the case was here previously, we held, that although the plaintiffs were the agents merely of Trevor, yet the defendants, by executing their receipts to them, and promising to collect the money for them, had become their agents, and that they could maintain this action in their own names, unless the true owner had asserted his right to the money, and intercepted it in the hands of the defendants. To exonerate themselves, then, from liability, they must show, that they have paid the money to the true owner. The money was paid to Boyd, who was the payee of the note, and who has indorsed it in blank, but the evidence afforded by the letters which were introduced, establishes conclusively, that Boyd had no right to the money, but that it belonged to Trevor, to whom Boyd had indorsed it.

There was evidence, that it was the custom, when foreign notes were sent here for collection, for the owner to indorse them in blank, and that when so received, it was customary when the money was collected, to transmit it to the last in-dorser. However competent such evidence might be, to establish a prima facie case of ownership, it can avail nothing here: First, because it is shown that Boyd was not the owner, and had no right to the money. Secondly, because the defendants did not receive the note from Boyd, and therefore had no right to presume that he was the owner, merely because his name was on the paper as an indorser. The plaintiffs were their principals, and they can only excusp themselves from accounting'to them, by showing-they have paid the money to the true owner.

The court therefore erred, both in the charge given, and the one refused. Judgment reversed, and cause remanded.