Seaver v. Weston

Knowlton, J. At the time of the death of the plaintiff’s intestate, George P. Hardy, there was a large quantity of unmanufactured lumber in his possession which passed to the plaintiff [204] by virtue of his appointment as administrator. This he could dispose of for the benefit of the estate in any reasonable way. He was accountable for the proceeds of it under his official bond. If he chose not to carry out the • contract which Hardy had made in his lifetime with the defendant, the latter would have a claim for damages against the estate. The estate was insolvent, and under the laws of Vermont claims against it would be proved before commissioners, and, upon allowance, their owners would share the assets pro rata. This suit is-brought by the plaintiff, not as administrator, but in his individual capacity, on a contract made with the defendant after Hardy’s death. The plaintiff as an individual could make a contract in regard to the lumber with the defendant as well as with anybody else, and by such a contract a liability might be created to the plaintiff personally. The court found, upon the evidence, “ that the plaintiff did undertake to furnish, and did furnish, the defendant lumber pursuant to said contract of October 17,1888, so far as kinds, quantity, qualities, prices, and place of delivery were concerned; but that the defendant agreed and was bound to account to and pay the plaintiff for whatever lumber the plaintiff delivered after he was appointed administrator of the Hardy estate, and without regard to or giving any credit for the advances made by the defendant previous to the death of Hardy.” The finding was well warranted by the oral testimony at the trial, and by the auditor’s report, which was a part of the evidence. Under this finding it is clear that the action can be maintained in the plaintiff’s individual capacity, and that the defendant is not entitled to set off his claim against the estate of Hardy for advances. Davis v. Estey, 8 Pick. 475. Grew v. Burditt, 9 Pick. 265. Kent v. Bothwell, 152 Mass. 341. Catlin v. Allen, 17 Vt. 158. Aiken v. Bridgman, 37 Vt. 249. Hatch v. Hatch, 60 Vt. 160. Gifford v. Thomas, 62 Vt. 34, 37. Bates v. Sabin, 64 Vt. 511. Two of these advances were made by notes payable to Hardy’s order, which were sent to him at a time when he was unconscious by reason of the accident which caused his death, and were indorsed in his name by his wife while he remained in that condition, and were subsequently indorsed by the plaintiff for the accommodation of Hardy at his wife’s request, in order that [205] she might get them discounted at bank. The proceeds of these notes went into Hardy’s estate, by direction of his wife, before his death. The defendant paid them at bank at maturity, in ignorance that the indorsement of Hardy’s name upon them was not by his own hand. The court found as a fact that the plaintiff, after his appointment as administrator, ratified the acts of Hardy’s wife in indorsing the notes. We are of opinion that he could lawfully ratify these acts, which were done in good faith in the name of the deceased for his benefit. There is no doubt that Hardy could have ratified them in his lifetime, even after the notes had been paid, and we see no good reason why his administrator could not do it with the same effect. It follows that these two notes stand no differently from the others in relation to this case. These two findings of fact make most of the defendant’s requests for rulings immaterial, and we see no error in the rulings nor in the refusals to rule at the trial. Under these findings the presiding justice properly found for the plaintiff for the amount due under his contract made with the defendant after Hardy’s death. Exceptions overruled.