Opinion
August Term, 1849.
The person to whom the money is due on a claim put into the hands of a constable for collection should be the relator in an action brought on the official bond for a breach of his duty in relation to such claim, and not the agent of such party, though the claim had been first put into his hands, he being a constable, and having transferred it for collection to the person sued.
APPEAL from the Superior Court of Law of HAYWOOD, at Fall Term, 1848, Manly, J., presiding.
This was an action brought by the relator upon the bond of the defendant, Ira D. Farmer, given upon his appointment to the office of constable in March, 1847, with the other defendants as sureties. The breaches of the bond assigned by the plaintiff were: First, want of diligence; second, failure to pay over; third, failure to return papers. Pleas, conditions performed and not broken.
The evidence was that, soon after the appointment of Farmer as constable in the county of Haywood, the relator, H. N. Brittain, who was also a constable in the same county, placed (46) in the former's hands a number of judgments for collection, and took a receipt in the following form, to wit: "3 April, 1847, received of H. N. Brittain the following judgments to collect or return, as the law directs" (mentioning a number of them), and signed, "I. D. Farmer, Cons." It was also proved that the evidences of debt upon which those judgments were obtained were put by the owners of them into the hands of Brittain for collection, as a constable, and that he at no time had or claimed to have any beneficial interest in any of them. It was also proved that, before the bringing of this suit, he had assigned over all fees due to him on those judgments to William Welch, one of his creditors. There was evidence of the collection and payment over to the plaintiffs in the judgments and persons owning them, of a considerable number of them, and evidence also as to the solvency and insolvency of the others.
The court instructed the jury, upon this state of facts, that the relator, Brittain, could not maintain a suit on the bond of the defendants, upon the relation of any one, he (Brittain) being in no sense an injured or aggrieved person within the meaning of the statute.
The relator excepted to these instructions, and, a verdict being rendered for the defendants, appealed from the judgment thereon.
Fitzgerald and J. W. Woodfin for plaintiff.
Bynum and Henry for defendants.
The case was well argued for the plaintiff. But the argument failed to convince us that the judge below erred in holding that Brittain was not the proper relator. It is true, the action should be upon the relation of the person who made the contract with the officer. But we think the contract was made by the owners of the judgments, through the agency of Brittain. The case states "that the papers upon which the judgments were rendered had been put in the hands (47) of Brittain, to collect as constable, and he at no time had or claimed to have any beneficial interest in the judgments." His agency, therefore, was disclosed, and it is the same as if the receipt had been "Rec'd of A. B. C., etc., by the hands of Brittain, the following judgments to collect," etc.
It is urged, however, that the receipt is not so worded. We admit that the receipt, as written, is prima facie evidence that the contract was made with Brittain, and that the judgments were to be collected for him. But they show upon their face that they do not belong to them. He executed the warrants as constable. The receipt is not conclusive evidence of the contract. It may be shown, as was done in this case, with whom the contract was really made, and that Brittain at no time claimed to be the party really interested.
Again it is urged that, as collecting agent of the creditors, Brittain had no authority to put the judgments into the hands of another constable, and that, at all events, his agency determined when his office of constable expired, so that by putting the judgments into the hands of another constable, he became responsible to the creditors, and cannot, in any point of view, be considered as doing so as their agent; and hence he should be allowed to recover in this action to enable him to meet his own liability. The creditors are not bound by this act of assumed agency on the part of Brittain. They have their election to hold him responsible or to ratify his act and look to the present defendants. Some of them have received their money from the defendants. This ratifies the act, and as to their judgments the plaintiff clearly has no cause of action. Others have not received their money. If they recover from Brittain he will then have to look to the defendants, because that will be a disaffirmance of his agency, and he will then stand in the same (48) relation to the defendants as if he had claimed the judgment as his when he put them into the defendants' hands for collection. But Brittain had not been held responsible by any of the creditors at the time this action was brought. He had sustained no damages, and of course was not "the party injured" or "the person to whom the defendants were bound to pay." Indeed, it would be unsafe for the defendants to pay him; for should the creditors ratify the contract made by Brittain for them, and sue them, they could not protect themselves by showing a payment to Brittain, and, should he be insolvent, would be without remedy. For ratifying Brittain's act in putting out the papers for collection would not confer upon him a right to receive the money, nor could the creditors, if Brittain did receive the money, hold the sureties liable on that account.
It was also contended that Brittain, being entitled to the costs upon the judgments for serving the warrants, and his assignment to Welch not affecting his right to sue, the nonsuit was, for that reason, improper.
Brittain's right to sue, if he had any, was not affected by the assignment to Welch, because his claim against the constable could not, in law, be assigned. S. v. Lightfoot, 24 N.C. 310. But the other proposition, although plausible, cannot be maintained. Brittain was not entitled to the costs so as to give him an interest in the judgments. They were in favor of the respective creditors, not only as to the debts, but also as to the costs. By the contract the constable undertakes to collect and the creditor is bound to pay him his costs. According to common usage, the costs are not demanded of the creditor until after judgment. Then, if the debtor is not able to pay, the costs are required of the creditor. But the judgment is in favor of the creditor for the costs, as well as the debt, upon the supposition that they have been paid by the creditor. There is not a divided judgment, in favor of the creditor for the debt and the constable for the costs. It follows that the nonsuit was proper, Brittain not being interested in the judgments, (49) even to the amount of the costs.
PER CURIAM. Judgment affirmed.
Cited: Garrow v. Maxwell, 51 N.C. 531.