Daniel McKinney v. Peters and Lewis, 1 Dallam 545

OCHILTREE, Justioe. Daniel McKinney filed his petition in the District Court of Bowie County, in which he alleges that on the 17th day of June, 1840, John S. Peters and Charles Lewis, the latter by the name and description of Chas. Lewis, for value received, acknowledged themselves indebted to your petitioner in the sum of $296.31, and in consideration thereof executed at the same time their promissory note, whereby they jointly promised to pay your petitioner said sum one day after date thereof aforesaid; yet though often requested, etc.

We presume that the order of pleadings in the case is not correctly stated in the transcript sent up, as the record represents the defendant as pleading first the general issue and then demurring to the petition. The demurrer was overruled and a jury impaneled, when a note described as follows was attempted to be offered by the plaintiff in evidence. “$296.31-100. One day after date, we promise to pay Daniel McKinney, guardian of the heirs of William Collum, deceased, two hundred ninety-six 31-100 dollars, value received of him this 17th June, 1840. (Signed) John S. Peters, Exr. of Samuel Peters, deceased.

Charles Lewis.” Which note the court refused to permit to go to the jury, to which opinion of the court the plaintiff excepted. The verdict of the jury was for the defendant; judgment accordingly. Why the court below refused to let the note go to the jury we are not informed by anything contained in the statement of facts. From the arguments and briefs of counsel submitted, we are led to the conclusion that the court below are of opinion that there was a variance between the note described in the petition of the plaintiff and that offered as evidence.

If it was because the petition did not set out the description of Peters, one of the payees, we are of opinion that he erred. There is no better settled doctrine than that an executor or administrator can not contract a debt to bind his intestate’s estate. This being admitted, the fact that he thought proper to add, as an appendage to his name, executor of Samuel Peters, deceased, imposed no obligation on the plaintiff so to describe him in his petition. It might have been because the descriptio personae of the payee was omitted in the petition.

We do not believe that it was necessary that the petitioner should have averred it, to enable him to offer a note which corresponded in all other material requisites with the indebtedness set forth. On a note made payable to an administrator, he may sue in his own name. Bayley on Bills, 335. So on a note payable to anyone in a fiduciary character, the payee need not sue in that character, but may maintain an action in his own name. We are of opinion, therefore, from all that we can glean from the record, that the court below erred in refusing to allow the note to be offered as evidence.

It is therefore ordered, adjudged and decreed by the Supreme Court of the Republic of Texas, that the judgment of the court below be reversed, and that the plaintiff Daniel McKinney do recover of the defendants, John S. Peters and Charles Lewis, the sum of $296.31, principal, and $71 interest, together with all his cost in this behalf expended, together with 10 per cent damages for delay, and that execution issue therefor. Reversed and rendered. Concurred in by Chief Justice John Hemphill and Judge R. E. B. Baylor. Judge P. C. Jack says: “I am compelled to dissent from the above opinion.

I do not think the note offered in evidence was described in the petition. The judgment in this case, it seems to me, would be no bar to an action brought on the same note, by the plaintiff as guardian.”