Opinion
32159.
DECIDED OCTOBER 30, 1948.
Complaint on note; from Savannah City Court — Judge MacDonell. May 21, 1948.
Anderson, Connerat, Dunn Hunter, James P. Houlihan, for plaintiff in error.
Mills Glass, contra.
1. Where one lends money for himself and as agent for other and takes a note so payable, the right and duty of the payee to collect the note for the principals for whom money was loaned is an agency coupled with an interest which is not terminated by the death of the payee of the note. His executrix has the right to proceed to collect it.
2. In a note payable to "Frank Cain for himself and as agent for various parties," the expression, "and as agent," etc., is not descriptio personae.
3. ( a) The court properly ruled, on demurrer by the defendant, that the plaintiff should allege the names of the persons for whom the payee was acting as agent.
( b) The court erred, after ruling that the plaintiff should set forth such information, in later ruling that an allegation that the plaintiff did not know the names of such persons was sufficient to meet the ruling that the names should be alleged.
4. The court erred in dismissing the whole amendment of the defendant in the nature of a setoff and cross-action. The defendant's setoff and counterclaim are based on the alleged fact that one of the principals for whom the payee loaned the money to the defendant had transferred its interest in the note sued on, to the defendant, after the death of the payee. The defendant contended that he could set off a claim for money which he had already paid to the payee or his executrix for his transferor, and which had not been paid or accounted for to the transferor. The defendant also contended that he could off set the remainder of the transferor's claim against the executrix on the theory of mutual debts. While the defendant cannot set off the claim for any moneys which have been paid to the payee or his executrix as against the claim of the executrix — for the reason that the debts due by the estate are subject to the legal rules of distribution of estates, over which the City Court of Savannah has no jurisdiction, and because to allow the setoff would be to give priority to the defendant's claim without the determination of the status of other claims — upon proper proof he would be entitled to a counter judgment for such sums. The defendant, as to such claim, occupies the same status as the transferor would have held. The same is true as to that interest of the transferor in the note which has not yet been collected from the defendant. Whether he has the right to set it off against the claim of the executrix or to collect it back after he pays the note in full, depends on the solvency of the estate and the priority of his claim before the court having jurisdiction of such questions.
DECIDED OCTOBER 30, 1948.
Hattie M. Cain, as executrix of the estate of Frank Cain, instituted an action in the City Court of Savannah against W. S. Scott on a promissory note to recover $8497.91, principal, together with interest from September 30, 1939. The note sued on is payable "to the order of Frank Cain for himself and as agent for various parties." As finally amended the petition alleged that the defendant was indebted to Hattie M. Cain, as executrix and personal representative of the estate of Frank Cain, deceased, individually and as agent, and that Cain died March 11, 1938. The defendant demurred on the ground that the petition did not set forth the names of the persons for whom Frank Cain was agent, or in what amounts or proportion such persons were entitled to share in the proceeds of the note, and that the petition failed to explain the entry on the note of the following figures: $389.77; $375.10; $171.91; $5709.15; and $5900; demurred generally; and demurred to the third paragraph of the petition because it showed on its face that the agency relationship had been terminated by the death of Frank Cain, and because there was no right in the executrix to maintain the action on behalf of any persons for whom Frank Cain was acting as agent in receiving the note. The plaintiff then amended by alleging the principal sum of $8259.42 to be due, and by alleging that the entry of the figures on the back of the note (besides the credits appearing thereon) were, insofar as they came within her knowledge, memorandums of various sums due the payee in the note, aggregating the face of the note. The defendant in his answer denied the material allegations except the execution of the note. After these amendments the court overruled all of the demurrers except the one which complained that the names of the persons for whom Frank Cain was agent were not set forth in the petition. The plaintiff then by amendment alleged that the names of any person or persons for whom Frank Cain appeared as agent were unknown to the plaintiff, and alleged that no agency existed and that the entire amount of the note was due to Frank Cain. The defendant then moved to strike this last amendment because it did not comply with the ruling of the court, or the demurrer objecting to the failure to name the parties for whom Frank Cain acted as agent. The judge overruled the motion, holding that the amendment was sufficient to meet his ruling on the demurrer. The defendant then moved that the court reconsider the last-mentioned ruling and require the plaintiff to elect between the inconsistent allegations, one alleging an agency and the other alleging that there was no agency. The court granted the motion and required the plaintiff to make an election. Thereupon the plaintiff filed an amendment whereby the case was based on the fact that there was an agency and that the persons for whom Frank Cain appeared as agent were unknown to the plaintiff. To the petition as amended the defendant demurred, on the grounds that there was no right in the executrix to maintain the action on behalf of any person for whom Frank Cain was acting as agent, and because the petition did not allege what part of the debt was payable to Frank Cain, how much of the debt due Cain had been paid, or what the balance due his executrix was. The court overruled the demurrer. The defendant then, on June 4, 1948, filed an amendment to his answer as follows: "1. The note described in plaintiff's petition from Walter S. Scott payable to the order of Frank Cain, for himself and as agent for various parties, represents and is made up of the following amounts due Frank Cain and various persons for whom Frank Cain was acting as Agent:
Frank Cain _____________________________________________$ 4,900.00 Frank Cain _____________________________________________ 389.77 Mrs. R. E. Cain ________________________________________ 1,000.00 R. Ethel Cain __________________________________________ 171.91 John Frances Cain ______________________________________ 375.10 Grand Lodge No. 5, Independent Order Good Samaritans and Daughters of Samaria, United States of America _______ 5,709.15 __________
Total ______________________________________________$12,545.93
"2. On November 7, 1939 (by amendment), for a good and valuable consideration, Grand Lodge No. 5, Independent Order Good Samaritans and Daughters of Samaria, United States of America, transferred and assigned unto the defendant, W. S. Scott, all its right, title and interest in and to said note.
"3. Up to the time of his death, the said Frank Cain at no time made any accounting or paid to the said Grand Lodge any portion of the monies collected upon said note, and since the death of Frank Cain the said Hattie M. Cain, as executrix, has at no time paid over or accounted to said Grand Lodge, for any of the money collected by her upon said note.
"4. The defendant, W. S. Scott, shows that between January 30, 1928, and September 30, 1939, he made payments upon said note totaling $9300, and defendant further alleges that neither the said Frank Cain nor plaintiff, Hattie M. Cain, as executrix, has ever accounted either to the aforesaid Grand Lodge or to himself, as assignee of said Grand Lodge for any of the amounts paid by Defendant upon said note.
"5. Therefore, by reason of the facts aforesaid, payment of the said note has not only been made in full, but upon an accounting between the parties and upon a counterclaim said Hattie M. Cain, as executrix under the will of Frank Cain, deceased, is indebted to defendant, W. S. Scott, in the sum of $2672.40 representing defendant's proportionate interest as assignee of said Grand Lodge, in the amounts paid upon said note after payment in full to Cain, together with interest at the rate of seven per centum (7%) per annum from the dates of payment of such amounts."
Another amendment to the answer also alleged $800 as paid on the note, in addition to amounts listed in the petition, to Frank Cain.
The plaintiff moved to strike the answer and counterclaim as amended, on the ground that they would constitute no defense of payment, as the defendant could not show payment by showing the amount due Frank Cain individually and payment of that amount to Frank Cain or his executrix; and on the further ground that the defendant could not show payment or counterclaim by an assignment to him of the Good Samaritan interest in the note, subsequently to the death of Frank Cain. The court sustained the motion and struck the amendment of June 4, 1948, except part of paragraph 4, as follows: "The defendant, W. S. Scott, shows that between January 30, 1928, and September 30, 1939, he made payments upon said note totaling $9,300.00," as amended by showing specific dates of eight payments of $100. Thereupon the parties agreed in open court that, based on the correctness of the several rulings above set forth, there would be due the plaintiff by the defendant below on the note, with interest to the date of trial, the sum of $10,322.46. The court then directed a verdict for the plaintiff for said sum. The defendant below excepts to the direction of the verdict and to the various judgments adverse to him, all of which are preserved by exceptions pendente lite, it being contended by defendant below that the said rulings controlled and affected the final judgment.
1. The demurrer on the ground that the plaintiff could not proceed for the interest in the note except that of Frank Cain was properly overruled. Death ordinarily terminates an agency, but where the agency is coupled with an interest the rule does not apply. We think that it is too plain to require citation of authority that, where the agent has title to the instrument itself, he has such an interest as will prevent termination of the agency. Cases where powers of sale were held coupled with an interest seem to be analogous. Finn v. Dobbs, 188 Ga. 602 ( 4 S.E.2d 655).
2. In ruling that the plaintiff was required to set forth the names of the persons for whom Frank Cain acted as agent, the court in effect held that the expression following the name of the payee was not descriptio personae. We think that this ruling was correct. First, as to the meaning of the expression, "descriptio personae" — it is not necessary to go into a detailed discussion nor cite cases not in point or not closely resembling this one. An expression is said to be descriptio personae when it is used for the purpose of identifying a person intended, and not to show that he was acting in a capacity otherwise than as an individual on his own behalf. The expression in this case unequivocally shows that the note was made to Cain as an individual and to Cain acting as agent for other parties. The expression itself distinguishes between the capacities in which Cain was acting, and we can see no justification in disregarding any of the expression in order to get a meaning obviously not intended. The plaintiff so treated the meaning of the expression, and for that reason can not contend otherwise. The order requiring allegation of the names of the principals was further correct because they were presumptively within the knowledge of Frank Cain. It was within his knowledge at the time of the loan, and conceivably might not have been within the knowledge of the defendant. At lending time the borrower is probably not primarily interested in who furnishes the money. Getting it is often the primary consideration. However, when a note is made to one as an individual and as agent for one or more unknown to the maker, in an action to recover on the note the defendant is entitled to the information as to who the principals are for whom the payee acted. This is assuming that the agency is revealed in the instrument if the same is under seal, as here. It is only where the sealed instrument does not reveal the agency that the parties are insulated by the seal. Hollingsworth v. Georgia Fruit Growers Inc., 185 Ga. 873 ( 196 S.E. 766). The defendant is entitled to this information because he has the right of setoff or counterclaim in some circumstances, and he can not exercise such rights unless he knows who the parties are against whom he might make a setoff or counterclaim.
3. The court properly required the names of the principals to be set out, and under the circumstances of this case erred in ruling that the amendment alleging that the names were unknown to the plaintiff was sufficient to meet the demurrer. It was not alleged why the plaintiff did not know the names or could not ascertain them or that the information was more peculiarly within the knowledge of the defendant than that of the plaintiff. The plaintiff should have been required to reveal the names of the principals for whom the original payee acted.
4. The court erred in striking the amendment to the answer dated June 4, 1948. The defendant's contention that he had the right to have the Good Samaritan claim set off as against the claim of the estate on the note is erroneous, for the reason that under our law the money collected on the note by Cain as agent for a principal is considered a part of the estate of the agent and is subject to the rules of distribution over which the City Court of Savannah had no jurisdiction. See Southern Star Copper Lightning Rod Co. v. Cleghorn, 59 Ga. 783; Tiedeman v. Imperial Fertilizer Co., 109 Ga. 661 ( 34 S.E. 999); Schofield v. Woolley, 98 Ga. 550 ( 25 S.E. 769, 58 Am. St. R. 315). To allow the defendant to set off the claim for money collected by Cain or for the interest in the note belonging to the Good Samaritans for money still uncollected, would result in a circumvention of the rules of distribution of estates. If the Good Samaritans had not transferred its interest in the note, in order for it to recover its interest, the executrix of Cain would have had to sue the maker and recover on the note, and the Good Samaritans would have had to file its claim against the estate, or to reduce it to judgment and then file it with the executrix for payment under the rules of distribution. So, the amount collected by the Good Samaritans would depend on the priority and amount of other claims to be passed upon by a court of ordinary or superior court. If the Good Samaritans had transferred its claim before Cain's death the principal of offset from mutual indebtedness might have applied, but the death of Cain froze the status of claims against the estate, but not in favor of the estate. Nix v. Ellis, 118 Ga. 345-349 (45 S.E. 404, 98 Am. St. 111); Green v. Allen, 45 Ga. 206; Turk v. Ross, 59 Ga. 379. Since the Good Samaritans transferred its claim after the death of Cain, the defendant as transferee could be in no better position than the transferor would have been. Therefore, it follows that, while the defendant could not offset his claim against the executrix in the present action, if he proves relevant allegations of the amended answer he would be entitled to a counter judgment in the present action against the estate for whatever amount the Good Samaritans would be entitled to for moneys collected for it and not accounted for either by Cain or his executrix. Then this claim could be filed with the executrix for payment according to the rules of distribution. The fact that the city court does not have jurisdiction to determine the priorities of claims against the estate does not mean that it does not have jurisdiction to give judgment on a counterclaim. We can see no reason to require the defendant to submit to the judgment against him, pay it, and then institute an action against the executrix for the amount now due. The defendant can not now obtain a counter judgment (as distinguished from a setoff) except for the sums collected and unaccounted for as above stated, for the reason that, if the Good Samaritans still had its claim, it could not sue the executrix for money collected from the defendant for it until the executrix actually collected it and refused to account for it. It would seem that the defendant, Scott, would have to pay the debt on the note to the executrix, and file his claim with her for the interest in the note transferred to him by the Good Samaritans.
The court erred in not requiring the plaintiff to allege the names of the persons for whom the payee was acting as agent, and in striking the entire amendment to the answer filed June 4, 1948. As there were no special demurrers, no further ruling is made on the sufficiency of the amendment.
Judgment reversed. Sutton, C. J., and Parker, J., concur.