Smith v. McGehee

CHILTON, J.

This was an action of assumpsit brought by the defendant in error against McGehee. The declaration contains only the common counts. By a bill of exceptions sealed at the trial, it appears the plaintiff below read to the jury anote signed by William M. McGehee, Abner Mc-Gehee, Joel A. Stokes, and the parties to this suit, for $1,800, dated May 19, ’40, and payable to the Branch of the Bank of the State of Alabama at Montgomery. It was shown that William McGehee was the principal in the note, and the other four persons named were his securities. That William becoming insolvent, Abner McGehee had paid the whole demand, and had collected, without suit, from Smith, one fourth of said demand, as contribution. To recover the amount so paid by Smith, this suit was brought against Albert G. McGehee, who it is alledged, at the time of the execution of the said note, agreed with Smith, that if he would sign it as security, he, Albert, would indemnify him against liability.

To prove the agreement to indemnify, the plaintiff offered in evidence a certified copy of a bill in chancery, filed by Albert against Abner McGehee in the chancery court, purporting to be sworn to, the register of said chancery court certifying that it was a full and correct copy of .the bill. This was objected to by the defendant. Waiving the question, whether a general objection to the evidence, without specifying any specific ground upon which it is based, can be regarded other than as an objection to its relevancy, we think the testimony thus offered was admissible in any view in which it has been presented to us in this court. Conceding that when records are exemplified, the general rule is, the whole must be exemplified, that the court may be able to construe it from a view of the whole record taken together, (1 Phil. Ev. 395,) and still, the rule would not exclude the bill in the present case ; for we are not advised that there is any answer or other proceeding in the court of chancery save the bill. But if the bill had been answered, it is manifest the answer could not have been evidence, and the only ■ '•ffect of the bill as evidence, was, to prove the admissions ,r'.?ruer oath, of the defendant. 1 Greenl. Ev. 556. This court has decided, that before the completion of the final record, the original papers may be given in evidence, as, till then, they compose a quasi record, and we see no reason why an exemplified copy of the papers may not be evidence in all cases where the original papers, as a record, could be read. Such has been the practice, to receive exemplified copies of the original papers, while the proceedings are in fi-eri, and before the final record is completed, and we think there is no rule of law which forbids it. The copy of the bill being read, for the purpose of showing the admissions of the defendant, was the whole of the record which concerned the matter in question, and while the court would not permit garbled extracts of the proceedings to be used as evidence, yet when the whole of the record which could by possibility have a bearing upon the case before the court, there is certainly no sound reason for its exclusion. See'upon this point, 3 Phil. Ev. C. & H’s Notes, 924, 1059; Francis v. Hazelrig’s Ex’rs, 1 Mar. Ken. Rep. 93; Packard et al. v. Hill, 7 Cow. R. 434; s. c. 5 Wend. R. 385.

In Ansley v. Carloss, 9 Ala. R. 973, this court held, that while the cause is progressing the papers are quasi records, and until the final • record is made, the papers, &c. in the cause are evidence, and the best evidence of the facts they import. In Woodward v. Harbin, 1 Ala. R. 104, it was held, a certified copy of an execution returned into court was admissible in evidence. These authorities are sufficient to show, that the bill in this case was very properly admitted.

2. In admitting as evidence the letter of Albert G. Mc-Gehee, purporting to contain a promise to indemnify the plaintiff against his liability on the note of William M. Mc-Gehee, we think it perfectly clear the court’ mistook the law. Aside from the fact that the instrument does not appear to be supported by any consideration, and was given after the liability had been incurred, and that it is not under seal, a more potent objection to it is, that it is wholly irrelevant. If this amounts to a valid special agreement to indemnify the plaintiff against his liability on the note of William McGehee, and it is still subsisting and undischarged, it is well settled that the plaintiff, in order to avail himself of the benefit of the contract, must declare specially upon it, and cannot recover upon it under the common counts, in any case. Lenningdale v. Livingston, 10 Johns R. 37; 12 Ib. 274; 1 Chitty’s Pl. 9 Am. ed. 330, n. 3, where the authorities'are collected.

3. The plaintiff was allowed to give evidence of a settlement, based upon an arbitration, and an award, which was shown to have been reduced to writing by the arbitrators, and by which settlement it appeared, that taking into the account the award, and all other matters between William and Abner McGehee, the former fell in debt to Abner in the sum of $900.

We are bound to regard this as an effort to avoid the well established rule of evidence requiring the best evidence to be produced. The object was to conclude Albert G. Mc-Gehee by the award, he being present and aiding in the arbitration. What the award was, we are not advised — non constat, the arbitrators charged Abner with the $6,701, the nominal amount of the rail road indebtedness, which was discharged in the subsequent settlement between him and William, by some arrangement between them. But by failing to produce the award, the impression is made upon the mind of the jury, that it resulted in the ascertainment of $900 as due from William to Abner, after charging the latter with the amount of the demands against the rail road. We think the evidence of the settlement, based upon the award, and which derived its force from it, should have been excluded, as it was evidently giving to the jury the contents of the award in a shape perhaps more questionable than by direct oral evidence. See authority on the brief of counsel for the plaintiff.

4. Not having been concluded by the award, so far as the proof in this record shows, Albert McGehee had a right to insist upon charging Abner with the full amount realized by him from the rail road company, for the demands placed in his hands. They were made available to him for their nominal amount in the payment of a debt due from him to the company. He held them in trust for the benefit of all the parties to this $1,800 note, charged with the duty of collecting them, and appropriating the proceeds to the payment of the demand to the bank, and other demands for which William McGehee was liable. Having disposed of them without the authority of the cestui que trusts, he is liable to account to them at their election either for the value of the demands, or for the amount he received for them. The trustee or agent can derive no benefit to himself from dealing in the trust fund. The profits so accruing belong to the cestuis que trust This proposition is too clear to require the citation of authorities to support it. 5

It is further a clear proposition of law, that if Smith paid the money to Abner McGehee, which he now seeks to recover from the plaintiff in error, in his own wrong, or, in other words, if the principal had already paid the demand to Abner, he could not recover the amount so paid, especially after he had notice from the plaintiff in error not to pay. We do not however express any opinion as to the effect of the award and compromise made between William and Abner McGehee, if it can be shown .that the plaintiff in error was present, aiding in and consenting to the arbitration. What is said in McGehee v. McGehee, 12 Ala. 83, will furnish a sufficient direction on this point.

Let the judgment be reversed and the cause remanded.