
    E. F. Mulloy, Administrator, vs. Julia C. Putnam, Administratrix, & others.
    October Term, 1873.
    Set-oot — Dbeense.—It is no defense to a bill filed by an administrator to enforce a vendor’s lien retained to secure a debt due to bis intestate’s esi ate, that be, as an attorney at law, bad received from tbe defendant a note to collect and apply the proceeds to the payment of tbe debt secured by tbe vendor’s lien, even if there were a failure (which is neither alleged nor shown) to collect under such circumstances as to charge him as attorney with tbe loss, especially if the contract to collect was made with the defendant as an individual, and tbe debt sought to be'enforced by the bill is against an estate of which the defendant is the personal representative.
    
      JE. F. Mulloy, for complainant:
    
      John Reid, for defendant.
   The Chancellor:

On the 9th of November, 1867, the complainant, as administrator of A. Gr. Payne, deceased, filed his original bill in this' court against A. W. Putnam and Julia C. Putnam, to enforce the vendor’s lien on certain real estate sold by Payne to A. W. Putnam, and for the purchase-money of which the latter had executed to Payne several notes of $3,000 each, payable at different times. This bill was filed to enforce the lien upon the last of these notes. On the 30th of August, 1871, the complainant filed his amended bill against Julia C. Putnam as administratrix of A. W. Putnam, who had, in the meantime died, and others, claiming an unpaid balance on the purchase note falling due next before the last. On the 6th day of April, 1868, A. W. Putnam filed an answer for himself and Julia C. Putnam, which is very informal, and, without say-iug anything about tbe complainant’s claim, simply claims that be bolds certain debts against A. Gf. Payne’s estate. These debts were afterwards allowed against the estate, and are not contested. On the 25th of September, 1871, Julia C. Putnam, as administratrix of A. W. Putnam, filed her answer to the amended bill, admitting that a part of the purchase-money in controyersy was unpaid at her father’s death, how much she does not know, and insisting that, since his death, the balance of such purchase has been paid by E. B. McLanahan, “ her agent and attorney.” After-wards, B. H. McEwen and wife, two other defendants, filed an answer which is sworn to on the 9th of January, 1873, but does not show the date of filing. In this answer it is insisted that a note sufficiently large to pay the debt due from Putnam to Payne, or nearly so, was put into the hands of complainant to be collected and the proceeds applied to the payment of said debt, and that complainant undertook and agreed to collect and apply the proceeds accordingly, and entered into writing to that effect. A formal answer was put in by the infant defendants.

Upon these pleadings no issue is made as to the right of the complainant to recover any unpaid balance due upon the notes mentioned in the original and amended bills. In the argument the learned counsel for the defendants suggested that the evidence threw a doubt over the right of the complainant to the note mentioned in the amended bill. Upon examination of the testimony, however, I think the complainant’s right to this note is satisfactorily made out, and the circumstance of its omission from the original bill fairly explained. I have not thought it necessary to go at large into the consideration of the testimony, but will merely say that I have carefully re-read it since the cause was submitted. It has left no doubt on my mind that the note was deposited by complainant’s intestate with the Union Bank as collateral security for some debt due by him to the bank, that payments were made on it while in possession of the bank, which doubtless satisfied the bank debt, and that complainant is justly entitled to any balance remaining unpaid.

But tbe point principally relied on by tbe defendants is tbe one suggested in tbe answer of McEwen and wife, and that is, that a note sufficient to pay tbe debt, or nearly so, was put into complainant’s bands to be collected, and tbe proceeds applied to tbe payment of tbe debt, and that complainant agreed in writing so to collect and apply tbe proceeds. Even this answer does not directly state that there was a failure to collect under sucb circumstances as to charge tbe complainant with tbe loss, but this is the position assumed in argument.. Tbe substance of the defense is that complainant, meaning E. E. Mulloy, administrator of A. Gr. Payne, agreed in writing to collect tbe note and apply proceeds. Conceding that tbe defense is well pleaded, its sufficiency will depend, in tbe first instance, upon tbe question of fact whether there was any sucb agreement as claimed. Tbe evidence relied on consists of the following receipt:

“ Nashville, April 6, 1868. Eeceived ft’om Julia C. Putnam, for collection, a note signed, etc. — describing it. Proceeds to be applied in payment of a note of A. W. Putnam to A. Gr. Payne, deceased.”
(Signed) E. F. Mulloy, Attorney.

This is tbe ordinary receipt of an attorney for collection, with tbe addition of a memorandum that tbe proceeds, when collected, are to be applied to tbe payment of a note of A. W. Putnam to Payne. It is not an agreement by tbe complainant as administrator of A. Gr. Payne to collect tbe note, nor does it purport to be an agreement to receive the note as collateral security. There is nothing in tbe receipt to implicate tbe estate of A. G. Payne, or connect it with tbe transaction. Nor is there any evidence independent of tbe writing, if sucb evidence were competent to add to tbe written instrument. As a matter of fact, therefore, tbe defendants have failed to show that tbe complainant as administrator of A. G. Payne, deceased, for that is tbe capacity in which be is complainant, ever did agree to collect the note in question. It is only by ignoring tbe substance, and insisting upon the letter of the defense that a plausible argument can be made in support of it. That is, by insisting tbat when the answer says a note was put into the hands of complainant, it meant the individual E. F. Mulloy, nob E. E. Mulloy, administrator. Such a construction does violence to the language used, not justified by any ordinary rule of interpretation. The learned counsel who argued the case for the defendants did not base his argument upon this construction. His argument went upon the ground that, as matter of fact, the contract as proven, bound the complain-, ant, as administrator, to collect. In this view I cannot concur, the fact being clearly otherwise.

But suppose the language of the answer can be held to assert that the note was put into the hands of E. E. Mulloy as an attorney, and that he, as such- attorney, agreed to collect the note and apply the proceeds to the note in his hands as administrator, would that agreement, sustained, as it may be conceded to be by the evidence, be a good defense to the bill, upon the further supposition that the note was lost by negligence in collecting? This could only be by showing that E. F. Mulloy’s failure to do his duty as an attorney at law in the collection of the note, made the estate he represented as administrator liable for the loss occasioned by such neglect. But this has not been insisted upon by the learned counsel for the defense, and, it is to be presumed, will scarcely be insisted upon. He is not Joefore the court in his individual capacity at all, and no redress, upon the pleadings as they now stand, can be had against him individually. If, therefore, a demand against him individually could, upon proper pleadings, be set off against a demand by him as an administrator — a point not necessary to be decided — there is no issue made to sustain such relief in this case.

As a further difficulty in the way of the defense made, the bill is by the complainant as administrator against the defendant, Julia C. Putnam, as administratrix of A. W. Putnam, while the receipt, upon which the defense rests, is given, to Julia C. Putnam in the lifetime of A. W. Putnam. If Mulloy has been guilty of negligence as an attorney, his liability is to Julia C. Putnam as an individual, not as ad-ministratrix. There is nothing in the pleadings or proof to show that the note was the property of A. W. Putnam, or that either he or his estate had any interest in the receipt. The effort,, therefore, is to relieve his estate from a just demand against it to the estate of A. G. Payne, by setting off against that demand a liability of E. F. Mulloy as attorney to Julia C. Putnam as an individual for negligence in collecting a note, the only link of connection — so far as appears —being the fact that E. F. Mulloy is also the administrator of A. G. Payne, and Julia C. Putnam the administratrix of A. W. Putnam. In the absence of authority, I cannot think such a link is sufficient.

I am of opinion, therefore, that the estate of A. G. Payne is not liable for any loss sustained by Julia C. Putnam, or the estate of A. W. Putnam, by reason of the failure of E. F. Mulloy, as attorney, to collect the note in controversy, if, indeed, he did fail to collect under such circumstances as to make himself liable for the loss. In this view, it becomes unnecessary to consider the question of such liability.  