Collier v. Pulliam

• Decision Date: 30 April 1884
• Citation: 81 Tenn. 114
• Parties: D. W. COLLIER, Surviving Partner, Etc., v. J. J. PULLIAM and JESSE LANE, Executors.
• Court: Tennessee Supreme Court

81 Tenn. 114

D. W. COLLIER, Surviving Partner, Etc.,

v.J. J. PULLIAM and JESSE LANE, Executors.

Supreme Court of Tennessee.

April Term, 1884.

FROM SHELBY.

Appeal in error from the Circuit Court of Shelby County. J. O. PIERCE, J.

SMITH & COLLIER for Collier.

HARRIS & TURLEY for Pulliam.

COOPER, J., delivered the opinion of the court.

Thomas & Collier, a firm composed of John Thomas and D. W. Collier, were the successors of two other successive firms of which Thomas was a member. The last firm purchased the assets of its predecessors, including the book accounts. In 1870, Thomas died, and J. L. Pulliam, the testator of the defendants, became administrator of his estate. Pulliam was a lawyer, and, under the direction of Collier as the surviving partner of Thomas & Collier, the accounts were drawn off from the books of the firms to the amount of $21,000, and placed in Pulliam's hands for collection. Pulliam made large collections, all of which have been accounted for with the surviving partner, Collier. About the first of January, 1878, Pulliam died testate, and the defendants are the surviving executors of his will. This suit was brought on May 22, 1878, to hold Pulliam's estate liable for a number of uncollected accounts upon the ground that Pulliam had neglected to make collections as he was bound to do, whereby these claims were lost. Upon the trial of the cause, the jury found a verdict in favor of the defendants. Upon the motion of the plaintiff for a new trial, the trial judge was of opinion that as to two of the accounts in controversy, the plaintiff had made out his case, and proposed to grant a new trial unless the defendants would allow judgment to go against them for the amount of these claims. The defendants consented to these terms, and judgment was rendered accordingly. But the plaintiff, not being content with the recovery, upon his motion for a new trial being overruled, filed a bill of exceptions, and appealed in error. The Referees have reported in favor of affirmance. The plaintiff excepts.

The error principally relied on is alleged to be in the following charge of the judge to the jury: “I also charge you that it is the duty of the plaintiff to prove that the accounts herein sued for were valid accounts, due and owing from the parties respectively against whom they ran, to your satisfaction, and if he fails to do so as to any of them he cannot recover thereon.” The plaintiff requested the court to give to the jury the following instruction: “That if they found from the proof that the books and accounts were placed in the hands of Joel L. Pulliam as attorney for collection, then the burden of proof was upon the defendants to show that the said Pulliam had exercised due diligence in the prosecution of suits and collection of claims so placed in his hands.” The court declined to give the instruction, but said to the jury: “That if the plaintiff showed by the proof that Pulliam had been apparently negligent as to any item or items of account placed in his hands for collection, then the burden of proof would be shifted to the defendants, and they must account for Pulliam's failure to collect such item or items, and if the defendants failed to account for the same, the jury should find against defendants as to such item or items.”

The plaintiff could only prove that the accounts sued for appeared upon the books of the firm, and offered no other proof to show that the accounts were valid, and due and owing by the apparent debtors. There was evidence tending to prove that some of the claims now in controversy, if valid, might have been collected from the supposed debtors for several years after they were placed in Pulliam's hands, and were now barred by the statute of limitations, or rendered worthless by the subsequent insolvency of the parties.

The substance of his Honor's charge is that the plaintiff could not recover without first showing that the accounts, for the failure to collect which the testator's estate was sued, were, when placed in the testator's hands, valid, subsisting debts of the persons against whom they were made out. And that after the plaintiff has made out a prima facie case of negligence, the burden of proof would be on ...