Tilley v. Harrison

• Decision Date: 12 February 1891
• Citation: 91 Ala. 295,8 So. 802
• Parties: TILLEY v. HARRISON.
• Court: Alabama Supreme Court

8 So. 802

91 Ala. 295

TILLEY v. HARRISON.

Supreme Court of Alabama

February 12, 1891

Appeal from circuit court, Choctaw county; WILLIAM E. CLARKE, Judge.

Action by appellant, W. M. Tilley, against appellee, T. J. Harrison to recover for breach of contract. The contract is set out in the complaint in hæc verba. Demurrer being sustained to the original demurrer, the complaint was amended. The defendant demurred to the complaint as amended, and assigned as grounds of demurrer that the complaint showed on its face that the contract sued on was a contract with the minor D. A Tilley, and that it can only be sued upon by said D. A Tilley, by his next friend; and because said complaint fails to show that the said contract was duly assigned to the plaintiff. The court sustained the demurrer, and, the plaintiff declining to plead further, judgment was rendered for the defendant. The plaintiff appeals, and assigns the rulings of the lower court on the demurrers as error.

Taylor & Roach, for appellant.

Geo. W. Taylor, for appellee.

CLOPTON J.

The question presented by the demurrer to the complaint is the right and capacity of appellant to bring and maintain in his own name an action on the contract which is set out in the complaint. Plaintiff's right to maintain the action depends upon the question whether, under the contract, he is the party entitled to receive the money promised to be paid and who can legally discharge the debtor. If this be so, whether he holds the money for the use of another when collected is immaterial, and does not affect the right to sue in his own name on the contract. The inquiry involves consideration of the character and terms of the contract, construed in the light of the relation existing between two of the parties. The amended complaint avers that D. A. Tilley, who is a minor, was the adopted child of plaintiff, and sets out the proceedings adopting him, which substantially conform to the requirements of section 2367 of the Code, providing the mode by which a child may be adopted. Though adoption may not, by operation of the statute, originate and establish all the legal consequences and incidents of the natural relation of parent and child, when the adoptive father declares in his own name as the name by which he wishes the child to be thereafter known, and takes it into his own family to be treated as a child, he assumes the duties of a natural parent, and is entitled to its custody and services or earnings as against all persons, unless it may be the true parents, when they have not consented to the adoption. The relation of adoptive father and child existed between plaintiff and D. A. Tilley when they entered into the contract with defendant. The averments of the amendment to the complaint show and cure the misdescription of plaintiff in the contract as guardian and godfather. This relation aids the ascertainment of the party who is entitled, under the contract, to receive the money agreed to...