#### J. L. MAYO v. F. L. DAWSON.

(Filed 20 November, 1912.)

1. Evidence — Nonsuit—Courts.

Tbe rule requiring the evidence to be considered in the light most favorable to the plaintiff, on a motion to nonsuit, does not permit of a construction that would in effect supply evidence in support of his contention.

2. Contracts — Assignor and Assignee — Moneys Collected — Evidence —Nonsuit.

In an action to recover, as assignee of certain organ leases, moneys alleged to have been collected and not accounted for, it is necessary for the xjlaintiff to show that the moneys had been collected subsequent to the time of the assignment, and in the absence of evidence to this effect, a judgment of nonsuit is properly allowed.

3. Executors and Administrators — Devises—Parties—Nonsuit.

An action should be brought by the executor to recover moneys alleged to have been collected and not accounted for by the defendant to the deceased on certain piano leases, and an action by the devisee of these leases in his own name cannot be sustained.

Appeal by plaintiff from Bragaw<, J., at February Term, 1912, of Beaufort.

Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Allen.

Tbe plaintiff is tbe son of L. R. Mayo! According to tbe allegations in tbe complaint, tbe defendant, prior to tbe death of L. R. Mayo, was engaged in selling pianos and organs, as agent for tbe said Mayo, bis compensation being a percentage of profits from tbe business. Tbe plaintiff claims tbat Dawson, tbe defendant, collected certain moneys and failed to account, wbieb is denied by tbe defendant. Dawson, and be brings tbis action to recover tbe same.

Tbe plaintiff claims tbat be is tbe owner of leases taken on sales of- pianos and organs, and tbe balance due on accounts growing out of tbe business. He contends tbat bis father gave or sold him tbe leases and accounts, and tbat, if tbis is not true, be is entitled to them under tbe will of bis father.

*77It is alleged in tbe complaint, and admitted in tbe answer, tbat tbe defendant made sales to certain persons, and tbat be collected certain amounts on tbe sales, but no date is stated as to tbe time of tbe sales or of tbe collections.

Tbe plaintiff introduced tbe will of L. E. Mayo, bequeathing to bim all bis interest, and all claims and accounts, in tbe piano and organ business.

Tbe plaintiff testified as follows: “I am son of L. E. Mayo. My father died in April, 1908. This book contains accounts of organs sold in 1905 and 1906. I have bad it in my possession since after January, 1908. Tbe entries are in tbe bandwriting of L. E. Mayo. It represents accounts of organs sold and leases turned over to my father. (Book here offered in evidence.) Tbe sales were made by E. L. Dawson and ~W. S. Whitson. I received tbe lekses and book at tbe same time. I bad conversations with Dawson about tbe accounts in this book, first in tbe latter part of 1901 or early part of 1908. I bad a conversation with bim a short time after I came in possession of tbe book. I asked Dawson about tbe accounts and balances due and if any collections bad been made on them. He said, No, except what bad been reported/ Either in tbat or a later conversation I told Dawson all accounts bad been turned over and belonged to me. He said nothing to this. After my father’s death I again asked Dawson about tbe accounts. I received tbe book and leases at tbe same time prior to my father’s death. He then gave me an account of tbe transaction with my father, stating tbat be (Dawson) was to sell tbe pianos and organs and .my father was to furnish tbe money to purchase them, and they were to divide tbe profits. My recollection is tbat Dawson said be was to get one-half of tbe commission out of tbe first money tbat came in. I do not remember whether be was to have all of the first money tbat came in. He was to get tbe balance out of the last payment. Accounts in the book show tbe commissions due bim and tbe commission paid him, except tbe J. W. Oden transaction. I have made demand for settlement twice. The first time be said nothing; tbe second time be claimed there was something due him on old business relations with my father, which terminated at tbe time of organization of the North State Piano Company.”

*78Cross-examination: “Dawson never asked me for this book.. He and I went over tbis book together, and be admitted tbe correctness of these amounts. I never refused to exhibit this book to- him. I did refuse to exhibit the old book of transactions had between Dawson and my father, terminating three years or more before the North State Piano Company was organized. I never did admit anything due on old business. Dawson never claimed that the profits of the North State Piano Company business should be .applied in. any way on the old business.”

At the conclusion of the evidence judgment of nonsuit was entered, and the plaintiff excepted and appealed.

Rodmam. & Rodmam, for plaintiff.

Ward &' Grimes for defendant.

Allen, J.

• This action is to recover certain money, which i't is alleged the defendant collected on 'sales made by him, under an agreement with L. E. Mayo, deceased.

The plaintiff contends that he is entitled to recover, because L. E. Mayo, who was the owner, prior to his death transferred to him the accounts and leases held against persons to whom sales had been made, or, if this is not established, that he is the owner of the leases and accounts under the will of L. E. Mayo.

There is no suggestion in the evidence that L. E. Mayo transferred to the plaintiff any claim against the defendant for any money collected prior to' the time it is alleged the accounts and leases-were transferred, and it therefore became necessary for the plaintiff, in order to sustain his allegation of ownership, other than under the will, to offer evidence of an assignment to him prior to his father’s death, and that the defendant had collected money on the accounts and leases'after such assignment.

The testimony of the plaintiff of his possession of the books, accounts, 'and leases, and of Ms conversations with the defendant, furnishes some evidence of ownership, but there is no evidence that the defendant collected any money after the plaintiff became the owner.

It is true the defendant admits certain collections, which he says he accounted for, but no dates are given, and it is impossi*79ble for us to see that they were made when the plaintiff had the right to demand payment of him, and the rule requiring us to consider the evidence in the light most favorable to the plaintiff on a judgment of nonsuit does not authorize us to supply evidence.

We are of opinion, therefore, the plaintiff cannot maintain his action on this title, and he is not entitled to recover under the will, because if the accounts and leases were not transferred prior to the death óf L. E. Mayo, the right to recover thereon is in his executor. Blankenship v. Hunt, 76 N. C., 377; Rogers v. Gooch, 87 N. C., 442.

Affirmed.