Winton v. Meeker

Hinman, J. The plaintiff alleges in his first count, that in consideration that he would agree to become administrator on the estate of Joseph Meeker, deceased, by legal appointment, and as such administrator would settle the estate, the defendants assumed upon themselves and promised that they would fully indemnify him for all his proper services as administrator, and for all his expenses and charges incurred in the discharge of his said duties, so far as the estate of the deceased, which could be made available, should prove to be insufficient for his payment and indemnification ; and then, as the ground of recovery, he alleges that he has fully performed his part of the contract, and that the estate has proved insufficient to pay for his services and expenses, of which the defendants have had notice, and that they neglect and refuse to indemnify and pay him, &e. The plaintiff proved that he took out administration under this agreement, and took certain measures as administrator in the progress of the settlement of the estate, but he failed to prove that he ever made any settlement of the estate; and the probate records show that no inventory of the estate was ever made, or that there was ever any settlement of the estate, or of his administration account with the court of probate ; and he now claims to recover on this count, without showing that he has administered and settled the estate; and the question is whether he can do so. We see nothing in the contract itself, as the plaintiff has chosen to state it in this count, to excuse the performance of it on his part. He alleges such performance as the ground of his right of recovery; and it is obvious that so far as the acts to be done by him were in any sense material, they must be performed, or the whole foundation of his action fails. His agreement must be executed according to its legal effect, or he has no right to call for the indemnification promised him. Indeed, the character of the agreement was such as seems to render it impossible to know, with any legal [463] certainty, what the deficiency of the estate, for his payment and indemnification would be, until the estate was finally settled, and his account, as administrator, was settled with the court of probate. If it was an object of the defendants to have the estate settled, it must be intended by it a legal settlement. The court below seem to have entertained the idea that the parties intended, by the settlement of the estate, merely such an investigation into its condition as to show with reasonable certainty what its condition substantially was, without requiring a legal settlement. If such was in fact the agreement, perhaps the plaintiff, on a count adapted to such a state of facts, might be able to succeed in his action. But we are satisfied that he can not, upon the contract, as he has stated it, in which he says he was to settle the estate, not merely to investigate its condition ; and to settle an estate, has as precise and definite a meaning as almost any other phrase. Surely it can not, in any sense, be said to be accomplished, so long as the administrator’s account is unsettled with the probate court. And as the plaintiff must recover upon the case as he has chosen to state it, we think the court was wrong in allowing the jury to find for the plaintiff upon any less proof than that the plaintiff had, in point of fact, caused a legal settlement of the estate. It is true the estate was very small, judging of it by such proof as was before the court, and might, probably, have been settled under the sixty-fifth section of the statute relative to the settlement of insolvent estates, at a trifling expense, and without the appointment of commissioners. But however this may be, we think some legal settlement of it was required to be proved in order to enable the plaintiff to recover on this count, and because the court charged the jury, substantially, that this was not required, we think a new trial should be granted. The defendants were examined as witnesses in the case, and, on their cross-examination, they were asked if they had not applied to Alva Gray, Esq., or some other person, to take out administration on said estate; to which they'answered that they had never so applied to any person whatever. [464] The plaintiff then was permitted to contradict this, by the testimony of Mr. Gray, though his testimony was objected to by the defendants. The object of examining the defendants on this subject is stated to have been to repel a claim that the plaintiff was solicitous to become administrator. But we do not see that this was a matter of any importance. The issue was not as to whether he was more or less willing to act as an administrator, but whether the defendants agreed to indemnify him for his charges and expenses for so acting. We are inclined to think, therefore, that as this point is stated in the motion, the testimony of Mr. Gray should have been excluded. There is no doubt as to the rule of law stated by Greenleaf, that if an irrelevant question is put to a witness, his answer can not be contradicted by the party who asked the question. And we do not see that the solicitation by the defendants, that Mr. Gray should act as administrator, tended at all to show that they also solicited the plaintiff so to act. It appears to us, therefore, that the inquiry of him should have been excluded. The contract stated in the bill of exceptions appears to us, as it was held to be by the court, a contract of indemnity merely. There was no agreement to pay absolutely for the plaintiff’s services, and to repay to him his expenses; but the agreement was to pay so much thereof as the estate should prove insufficient to pay. The claim against the defendants, therefore, was in the nature of a claim against them as sureties for the estate. It was substantially a guaranty that the estate should prove sufficient, and as such did not show the relation of debtor and creditor, upon which alone the common counts are founded. There was no error, therefore, in this part of the case; but for the reasons before stated, we advise that a new trial be granted. In this opinion the other judges, Storrs and Ellsworth, concurred. New trial advised.