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Guerry vs. Perryman and Dennard.

the consent of the defendant. What then was to be done with the case? we answer, the Court had no power to discharge the jury and put the defendant again upon trial, and there being, as the record shows, no evidence of guilt, the Court should have ordered a verdict of acquittal.

Let the judgment of the Court below be reversed.

No. 7-JAMES P. GUERRY, plaintiff in error, vs. THOMAS J. PERRYMAN and JOHN DENNARD, defendants in error.

[1] If A, as heir of C, recovers of B, the administrator, a judgment for his distributive share, and afterwards sues D, as security on the administration bond, and gets a judgment for a less sum against him and collects the same, the first judgment is not merged in the latter; and the payment, in full, of the latter, does not operate as an extinguishment of the former, but as satisfaction pro tanto only.

In Equity from Sumter Superior Court. Tried before Judge Warren, November Term, 1846.

For the facts and circumstances of the case and the error assigned, see the decision of the Supreme Court.

SULLIVAN, GUERRY & HILL, for the plaintiff in error.

In support of plaintiff's equity, Mr. Hill cited Mitchell vs. Oldfield, 4 Term R. 123; Simpson vs. Hart, 14 John. R. 63.

The Court erred in overruling testimony, that the decree against Perryman was not read in evidence in the cause against Durham, but that the record thereof was rejected for misdescription. 1 Greenl. Ev. 570; Seddon vs. Tutch, 6 Term R. 608; Webster vs. Lee, 5 Mass. R. 334; Ravee vs. Farmer, 4 Term R. 146.

The Court erred in rejecting testimony offered to prove that Durham had been indemnified by Perryman, and in its charge to the jury. 1 Greenl. Ev. 563; 14 John. R. 81; Crossland's Ex'r. vs. Murdock, 4 McCord, 217; Com. Dig. Estoppel B.; Shelton ads. Cureton Ordinary, 3 McCord, 412; Lyle vs. Caldwell, et. al. 3 McCord, 225; 17 Mass. R. 482; 2 Smith's Leading Cases, 437; 1 Bailey's R. 348; 4 Ala. R. (new series) 430.

Guerry vs. Perryman and Dennard.

BROWN for the defendant in error, replied and cited 1 Chit. Pl. 233; Livingston vs. Bishop, 1 John. R. 290; Rawson vs. Turner, 4 John. R. 470; Drake vs. Mitchell, et. al., 3 East's R. 258; 6 Wheeler's Amer. Com. Law, 280, 287.

By the Court-LUMPKIN, J. delivering the opinion.

James R. Lowery departed this life intestate, in 1836 or "7, leaving, as it is alleged, a considerable estate. James P. Guerry intermarried with Mary Ann Lowery, one of the daughters of the deceased, and thereby became entitled to a distributive share of the estate. Thomas J. Perryman took out letters of administration upon the estate of Lowery in the county of Twiggs; Hardy Durham and Reuben A. Nash uniting with him as his securities in a bond of seventy thousand dollars.

In a bill filed by Guerry and others of the legatees, against Perryman the administrator, to recover their share of the net surplus of Lowery's estate in his hands, there was found to be due Guerry in right of his wife, two thousand forty-eight dollars and sixtyfour cents. Perryman absconded without satisfying this decree, and suit was brought by Guerry and others of the heirs, against Hardy Durham, one of the securities in the administration bond, in a separate action. In this action, the jury found for Guerry only about eight hundred dollars.

In the course of Perryman's administration upon the estate of Lowery, Guerry became the purchaser of property at one of the sales, to the amount of nine hundred and eighty-eight dollars and fifty cents, for which he gave his three promissory notes to Perryman as administrator. An action has been brought in Sumter Superior Court upon these notes, in the name of Thomas J. Perryman the payee, for the use of John Dennard. To this action Guerry proposes to set off the balance of the decree in his favour against Perryman as administrator of Lowery, after deducting therefrom the amount collected by him in the suit on the bond against Durham the security. And he has filed his bill for the purpose of letting him into this defence.

[1] Dennard the usee, in answer to the bill and by way of estoppel, insists that every liability of Perryman to Guerry, including the decree in his favour, was determined in the action on the bond against Durham the security. And that the recovery against Durham and satisfaction thereon, is a bar to Guerry's plea of set off.

Guerry vs. Perryman and Dennard.

On the other hand, it is contended by Guerry, that the only issue made in the suit on the bond, was the amount of Durham's liability as security; and that the previous decree against Perryman was not at all involved in the subsequent litigation.

After the pleadings and evidence were gone through, the Court charged the jury, that where there is a judgment against an administrator, in favour of an heir at law for his distributive share of an estate, that a subsequent judgment against the security on the administration bond, in favour of said heir, for his distributive share, is conclusive evidence of the amount due on the first judgment, at the time of the recovery of the second judgment, and that the payment of the latter, by the security, operates as a full discharge of the administrator from the first judgment, although the first judgment against the administrator be for a much larger sum than the second judgment against the security. To which charge, the defendant in the action at law below and complainant in the bill, excepted.

Was the objection to the instructions of the Court well taken? we consider the point a very plain one. In the case of Bryant & Beall vs. Owen and wife, 1 Kelly R. 355, this Court held that a decree against a guardian, (and the same doctrine applies to an administrator,) is only prima facie eridence of a devastavit as against the security, not conclusive; and that said decree was subject to be rebutted by counter-testimony in behalf of the security, who will be permitted to inquire ab origine, into the justice of the decree.

But while this decrce is only prima facie evidence against the security, it is conclusive against the principal himself. Concede that it has been obtained by collusion between the heir and the administrator, while it is liable to be scrutinized and scaled by the security, the mouth of the principal is shut; he cannot gainsay the amount. And so far from its being law, that the recovery on the bond against Durham was conclusive of the amount owing by Perryman to Guerry at that time, it is no evidence whatever of that fact. On the contrary, the decree in favour of Guerry against Perryman, is the highest and only evidence of Perryman's indebtedness to Guerry. And the amount collected of Durham on the bond, is only a satisfaction pro tanto of the previous decree against the principal.

The judgment below must be reversed.

9

Adm'r Green vs. Bryant.

No. 9.-Adm'r of SHEPHERD GREEN, deceased, plaintiff in error vs. NEEDHAM BRYANT, defendant in error.

[1.] If A agrees to buy a plantation for B, and B agrees to pay A what he gives for it, and A represents to B that he gave three thousand dollars for it, when in fact he paid a less sum, and B pays him three thousand dollars, an action on the case will lie in favour of B against A, for the deceitful and false representation.

Case for Deceit. plaintiff's intestate.

Brought by defendant in error against the From Lee Superior Court. Tried before Judge WARREN, November Term, 1846.

For the facts of the case, see the opinion of the Supreme Court.

STURGIS for the plaintiff in error.

LYON for the defendant in error.

By the Court-NISBET, J. delivering the opinion.

The declaration in this case alleges, that the plaintiff and the defendant were brothers-in-law; that the plaintiff, residing at the time in the county of Burke, was desirous of removing to some of the southwestern counties, and, in consideration that he would move to the county of Lee, where the defendant resided, he, the defendant, proposed to him that he would purchase a plantation there, owned by a man named Andrews for him, (the plaintiff,) and that he should have the plantation at the price that the defendant might be compelled to pay for it; that the plaintiff, in order to be near his brother-in-law, and to have the comfort and satisfaction of his society, and confiding in his good intentions, acceded to the proposition. That, some time after this understanding was entered into, the defendant informed him that he had bought the plantation, and that he and his brother had paid for it about the sum of three thousand dollars; and that, confiding in the truth of this statement, he executed to the defendant and his brother, his notes for some twentyseven hundred dollars, which he paid. That the representation of defendant, that he had paid three thousand dollars for the land, was false and fraudulent. That the defendant had paid for it only some twenty-two hundred dollars, and that he knew that his state

's about the price paid for the land, were false; that they

Adm'r Green vs. Bryant.

were made to deceive and defraud the plaintiff, and that the plaintiff was damaged the sum of fifteen hundred dollars. To this declaration the defendant demurred, upon the ground, that the plaintiff's writ contained no cause of action; in other words, that the representations made by the defendant, would not sustain an action for deceit.

The Court overruled the demurrer, and that is assigned for error. Much discussion was had at bar upon the character of the contract or agreement entered into between these parties, as set forth in the declaration. On one side it is claimed to be valid, and on the other void for want of consideration. We do not find it necessary, in the view we take of this subject, to determine whether it be or not a nude pact.

It was argued by the defendant's counsel, with much [1.] earnestness and ability, that the defendant in the Court below, (Green,) was, in the case made by the writ, the voluntary agent of the plaintiff, to purchase the land of Andrews; and that as such, having entered upon the duties assumed, he was bound to execute them in good faith; and if by his misfeasance any injury should accrue to the plaintiff, he was bound to make it good to him. We recognise this position, and cannot doubt but that it is good law. The state of the pleadings, however, forbids its application in this case, for this is an action on the case, with one special count, to recover damages for deceit practiced by the defendant on the plaintiff. We do not question but that an action for money had and received, would well lie upon the principles just now adverted to; but this is not that action. We are to determine whether the action on the case for deceit, can be sustained upon the facts averred in the plaintiff's declaration; that is, whether the false and fraudulent representation, knowingly made by the defendant, touching the amount of money paid for the land, is a good foundation for this action; we think it is.

The position assumed by the counsel for the defendant in this case, is better stated in the language of Grose, J. in the great case of Pasley vs. Freeman, reported in 3 T. R. 54, than any which I have at command. In enumerating instances in which the action of deceit will not lie, Mr. Justice Grose, in the dissentient opinion which he gave in that case, says: "That if the assertion be a nude assertion, it is that sort of misrepresentation, the truth of which does not lie alone merely in the knowledge of the defendant, but may be inquired into, and the plaintiff is bound so to do, and he

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