Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-03-06
DECISIONS OF THE SUPREME
COVRT.

| Court Of Davidson county, by Helen SureT
Administrative Of Charles Surer, and he
four minor children, who sue by her a
next friend, to recover s. 600 and the in
teTest thereon, being the amount OF tW,
| promissory notes, payable to the plaintiff
Helen Surer az the Administrative o.
Charles Surer which, il is alleged, the de
fendant frauduIently obtained the posses
sion Of BY paying the same TO an unauthor
lied agent, in Confederate currency
There are four counts in the declaration,
setting forth these facts, To which the de
fendant pleaded several pleas; that the
notes were paid and voluntarily delivered
to the defendants. A demurrer was filed
bat, on the trial of the cause, all objections
TO the pleadings were Withdrawn, and
the cause submitted to the court upon the
law and facts, waving the Intervention of a
jury. The facts are substantially as fol-
lows DR. Charles Surer, native Of
Germany, some twenty years ago,
intermarried with Helen Tubbs.
of the county Of De Kalb, in this State
After his marriage he settled in that eonh-
~. He was possessed Of considerable es-
tate in Germany-remittanc Of money
were from time to time received. In 1853
he received $4,000, which he deposited in
the Bank of Tennessee, at Nashville. He
died shortly after this deposit intes-
tate, leaving "a widow and four
children, bis heirs and Distributes, who
are the parties to this suit. In 1860
lFthe defendant, Green, wishing to borrow
! $4,000 on long time TO place his son in
business, knowing Of this fund, applied to
Judge NJ. NJ Brien, the legal adviser and
relative Of the family, to procure. a loan.
Brien advised the loan, and, to effect it, il
was necessary, in order 10 draw the
/ money from the bank, an administrator
should be appointed upon the estate Of DIR.
| Surer, and, in pursuance of Brien's in
structiOns, Helen Surer was appointed and
/ qualified to carry out these purposes. She
| gave to her father, james Tubs, citizen
! OF DE kalb county, power Of attorney
| 10 draw the money and make the
/ loan. lie came TO Nashville in pur-
! suance Of the previous understanding of
the parties, drew from the bank $1,000, and
| loaned il to the defendant Green, en- the
--- day Of --, 1860, taking his note at
twelve months, payable to Helen Surer, "a
administrators, with 1hOs. Fife as security.
She agreed TO let him have the additional
sum Of $1,000, as soon as it was received
from Germany A short time thereafter,
the money was received, and on the --
day Of --- 1860, $1,000 was loaned in the
same way at twelve months. Green executed
his note to Helen !Surerasa Administrative with
Fite as his security. The notes were de-
livered to james Tubbs, the father of Helen.
Green paid the interest on the maturity Of
the first note. About the last of Deem I
Der, 1861, or the lst Of January following,
shortly after the battle of Fishing creek, In
which the Confederate forces were defeated,
and the Federal forces advancing upon
Fort Doneson, the defendants sent T. D.
Price with the amount of the notes
I'D Confederate currency to DeKalb
county with instructions to pay of and
take upthe notesincluding interest. Judge
N. NJ. Brien, the legal adviser and relative
OF the family was at the time, citizen and
resident of Nashville. No notice or infor-
nation was given him Of their purposes. |
Price called on James Tubbs, who, il APP
pears, still retained the notes in his pos |
session; Tubbs declined to receive the cur |
rency. Price insisted on paying them, |
stating the money was good, that he would |
take il in payment Of his debts and the |
time would soon come when the people /
would be compelled to take H. Mrs. Helen |
Surer lived some distance from her father. |
Price left Tubbs without paying the notes, |
and returned in few days. and upon his |
urgent solicitations the Confederate cur |
rency was received by Tubbs. Price, in his |
testimony, says he spoke of investing it in |
Confederate eight per cent bonds. He adj |
vised him against this, as the Confederacy |
was not established. He then spoke of in /
yesting it in mountain lands. Price says |
Tubbs received the Confederate cur |
rency voluntarily and without threats /
or coercion on his part. At the |
time of the payment, the country was |
filled with rebel soldiers. When Mrs. /
Helen Surer, the adm'x, was informed by |
her father he had received the Conied- |
crate currency, she told him he had done |
wrong in receiving il, and il she had been /
present il should not have been done. The /
money was never received by her from her |
father. He loaned out about $1,000 Of the \
currency, and has the notes which the par
ties owing him refuse to pay, and has the
balance in his possession. There is no /
proof in the record Mrs. Helen Surer ever
ratified the act of James Tubbs in receiving
the currency and delivering up the notes,
other than the facts stated Tubbs is a
feeble old man, about eighty-one years of /
age Upon the return of Price to Nash
vile, Judge NJ. NJ Brien, being informed
of the transaction and payment, stated TO
the defendants that the payment would not
be recognized, and they would be compelled
to pay the notes. Upon the hearing, the
Cont wasofopinion, the children ofDr. Su-
rerthe niantplaintihs were entitled to rerov-
er four-tiiths Of the money loaned, with the
interest that the plaintiff, Helen Surer,
having received the money through her |
agent voluntarily, was not entitled 10 re-
cover the share of One-fifth 20 which she
was entitled from which Judgment Of the
Court both parties have appealed to this
Court
The question presented for our consider
alton is, was the payment Of these notes in
Confederate currency TO James Tubhs, who !
was the custodian of the notes, and the de-
livery of them 10 the agent of the defend
ants, such n payment and discharge of the
debt, as will bring the case within the
principles of law, as settled by this court.
of an executed contract For the solution
Of this question, it becomes necessary 90 |
look 10 the situation OF the parties. 20 the
circumstances that induced the loan. the
motives that influenced the defendants 10
discharge the debt, and the circumstances
surrounding the arties at the time the pay
ment was made. II is insisted Cor the de
PENDANT james Tuhbs wasthe legal and an.
thorized agent of the plaintiff. Helen
Surer, and therefore had a right TO receive
the money, and having received it, il
thereby became an executed contract. And
under the rulings Of this court, that though
the payment was in illegal and unlawful
currency, from public policy, the contract,
being executed, viii not be disturbed The
proof-shows when the money was loaned.
il was understood it was not to be paid ex-
cept the interest, until the children, who 1
then were young, had arrived at age. The
defendant Green stated he could get
money al short time, bat wishing TO
place his son in business, he wanted
it Tor a long period To effect sthe
loan, Judge Nj. NJ Brien, The legal ad-
wiser Of the family was applied Ia, who ia
vored il, and, through his advice, Mrs.
Helen Surer was induced 10 administer on
her husbands estate and, Cor the purpose
OF drawing the money from the bank, a Z
power OF attorney was given 10 James
Iubhs, who drew the money. and nm