George v. Solomon

• Citation: 71 Miss. 168,14 So. 531
• Court: United States State Supreme Court of Mississippi
• Decision Date: 30 October 1893
• Parties: W. W. GEORGE, EXECUTOR, v. J. S. SOLOMON

14 So. 531

71 Miss. 168

W. W. GEORGE, EXECUTOR, v. J. S. SOLOMON

Supreme Court of Mississippi

October 30, 1893

October 1893

FROM the chancery court of Lauderdale county, HON. W. T. HOUSTON Judge.

The facts are stated in the opinion.

Decree reversed and bill dismissed.

Walker & Hall, for appellant.

The bill does not show a cause of action. It does not aver that the rent was improperly paid to either defendant. Liability is attempted to be imposed upon Mrs. Ragsdale's estate not by reason of any fraud, accident or mistake in paying the rent to her, but because of inability of her representative to establish the want of authority of another to collect her rent. The relief is not to force defendants to interplead and determine which estate is liable, but to hold Mrs Ragsdale's estate liable, unless her representative can show the want of authority on the part of her husband to collect the rent.

No relief can be obtained under the contract, because the bill does not allege any breach or any refusal by Mrs. Ragsdale to substantiate the claim against her husband's estate. It is not shown that demand for payment was ever made against his estate, or that suit was ever brought to establish its liability. The promise of Mrs. Ragsdale to testify was without consideration. Her duty to do so was one imposed by law. Her promise did not increase her legal obligation. The duty, at most, was a personal one, and non-performance was excused by her death. Bishop on Contracts, § 595.

Harem, Witherspoon & Witherspoon, for appellee.

The equity of the bill consists in the allegations that either Ragsdale or his wife practiced a fraud on complainant. One or the other obtained plaintiff's money by deception or false pretenses. Another allegation which completes complainant's equity is that the facts which are to determine which estate is guilty of the wrong are unknown to complainant. Lauderdale County v. Alford, 65 Miss. 63.

Since the court has taken jurisdiction and decided the case on its merits, it is now immaterial whether the suit was brought in the right court or not. Const. 1890, § 147.

Mrs. Ragsdale cannot take refuge in the written contract to escape liability. If, by fraud, she got complainant's money, she cannot be relieved because she made a contract, and died without having fulfilled it.

It was not error to refuse defendants leave to answer the amended bill. They had been guilty of laches, and the answer, filed without leave of court, had no merit in it. Patterson v. Josselyn, 43 Miss. 373; McAdory v. Turner, 56 Ib., 666.

There was no duty devolved on Solomon to sue the estate of Ragsdale. He did not agree to bring immediate suit. He had the right to wait a reasonable time to see if the estate would pay the claim. Had suit been brought at once, there is no showing that the case could have been brought to trial before the death of Mrs. Ragsdale.

Mrs. Ragsdale's agreement to substantiate complainant's claim against her husband's estate was not a personal one, but, if it were, her death did not excuse performance, since the consideration had been received by her, and is being retained by her executor.

OPINION

COOPER, J.

The decree in this cause rests upon no sufficient foundation. Whether we look to the so-called written contract of the parties, by which Mrs. Ragsdale agreed to "substantiate" the claim of appellee against the estate of L. A. Ragsdale, or to the agreement interpreted by the averments of the bill, it is clear that no right of action of any sort, either at law or in equity, exists in favor of the appellee.

Solomon leased the land of Mrs. Ragsdale from her husband, who acted, in so doing, as her agent. He paid to Mr. Ragsdale $ 1,000 of the accruing rent, believing, but not knowing, that Ragsdale was the agent of his wife, authorized to receive such rent. After the death of Mr. Ragsdale, Mrs. Ragsdale denied that he had been her agent, and repudiated his authority to collect the rents. She also denied the validity of the lease made by him to Solomon. An adjustment of the matter was made between Solomon and Mrs. Ragsdale, and on March 8, 1888, its terms were reduced to writing, which was signed by them. After reciting the facts of the lease, the payments to Ragsdale made by Solomon and that Mrs. Ragsdale denied his authority to act for her, the agreement continues thus: "Now, the said parties have adjusted said matters on the following basis: Solomon pays Mrs. R. $ 1,000 on account of back rents on said premises, and Solomon agrees to propound his claim against the estate of Mr. Ragsdale for the sum of money so paid to him, and Mrs. R. agrees to substantiate the fact and claim of Solomon that Mr. R. had no right to collect said rents."

The bill of complaint exhibited by Solomon in this cause against the personal representatives of Mr. and Mrs. Ragsdale avers that, soon after the execution of the written agreement between himself and Mrs. Ragsdale, he probated his claim against the estate of Mr. Ragsdale, "and expected to obtain a judgment against his executor on the testimony of said Sarah A. Ragsdale that the said L. A. Ragsdale was not authorized to collect said rents; but, in a few months after said money was paid to said Sarah A. Ragsdale, and after she had agreed, as aforesaid, to substantiate said claim, to wit, on the -- day of January, A. D. 1889, the said Sarah A. Ragsdale died, and the complainant has never been able to find any other person who knows whether the said Sarah A. Ragsdale had authorized and empowered said L. A. Ragsdale to collect said money or not, nor has complainant been able to prove that the said L. A. Ragsdale was authorized to collect said rents, or that he was not authorized to collect the same.

The bill then avers that the complainant does not know whether the estate of L. A. Ragsdale or the estate of Mrs. S. A. Ragsdale is liable, but that either the one or the other of said estates owes him the sum of $ 1,000, and prays that L A. Ragsdale, executor of the will of L. A. Ragsdale, deceased, and W. W. George, executor of the will of Mrs. Sarah A. Ragsdale, may be made parties defendant, and "that said defendants may be required to show and prove to the court whether the said L. A. Ragsdale was authorized to collect the rents named in this bill or not, and to show and prove to the court which of said defendants is bound to refund said $ 1,000 paid as set forth, both to said L. A. Ragsdale and to Sarah A. Ragsdale; and if, on final hearing, it shall be proved to the satisfaction of the court that L. A. Ragsdale...