Niles v. Carlton's Estate

Powers, J. For several years prior to her death in 1904, Adora N. Carlton and her brother, Edward S. Niles, had owned a farm in the town of Halifax as tenants in common. Another brother, James P. Niles, had formerly owned a third interest in the place, but conveyed it to Edward S. in 1898. During the lifetime of Adora N., the claimant, at his own expense, made extensive repairs and improvements on the-property and paid out various sums for insurance and other purposes. He now seeks to collect one-third of such expenditures from Adora N.’s estate. He declares in assumpsit and had judgment below on facts found by the court. [263] We have no occasion to inquire what the situation would have been had the claimant gone voluntarily on and made the expenditures referred to-without the authority or approval of Mrs. Carlton, for that is not the case made by the findings. On the contrary, the trial court has made it perfectly clear that the expenditures were made with a distinct understanding between the parties that Mrs. Carlton was to pay one-third thereof. The farm was purchased with the understanding that it was to be fitted up for a summer home. It was agreed between the claimant, his brother and Mrs. Carlton that they should share equally in the purchase price, and that the claimant should proceed in his own way to make the repairs and improvements, and fit the place up for the purpose for which it was purchased. Nothing was said about the amount or extent of the repairs and improvements, but Mrs. Carlton admonished the claimant to get the work done as cheaply as possible. She knew that the improvements were being made, and occasionally visited the premises and consulted with the claimant regarding them. They never agreed upon the nature and extent of the changes that were to be made nor did she have knowledge thereof before they were completed. But she did have “such knowledge as she acquired by occasional visits to the farm and consultations with the claimant,” and she appeared to acquiesce in what was being done. She must have been pretty well informed as to what was going on there, for the character of the work was such that but little could have escaped her attention. She made several payments to the claimant on the account, and there is nothing in the findings to indicate that she ever revoked the authority originally conferred on the claimant when she gave him a free hand to go on “in his own way” as above stated. The findings state that the ‘ ‘ expenditures for necessary repairs and improvements upon the property, insurance, legal services and personal property were made with the knowledge of Mrs. Carlton, and with the expectation on the part of both the claimant and Mrs. Carlton that she was to pay one-third.” A spring of water was purchased and an aqueduct laid for the benefit of the common property, “with full knowledge on the part of Mrs. Carlton, and with the expectation on her part to pay one-third of the expense.” [264] These parties, though tenants in common, were at liberty to make such special contracts regarding their joint property as they pleased. And such contracts, when made, would bind them to the same extent and be enforceable in the same manner as similar contracts between strangers. Strother’s Admr. v. Butler, 17 Ala. 733; Fowler v. Fowler, 50 Conn. 256; Gwinneth v. Thompson, 9 Pick. 31, 19 Am. Dec. 350. Nor is an express promise indispensable in such cases; the circumstances may be such as to give rise to an implied promise, which is equally effective in fixing their rights and liabilities. Note to Ward v. Ward, 52 Am. St. Rep. at p. 936; 11 Am. & Eng. Ency. L. 1095-6; Haven v. Mehlgarten, 19 Ill. 91; see Jourdan v. Soule, (Me.) 12 Atl. 786. Mrs. Carlton became liable for her share of the expenditures, not by virtue of her relation to the property, but by virtue of her agreement to pay, — an agreement arising out of the circumstances in which the expenditures were made. That the claimant had not accounted for his use and occupancy of the property, in excess of his fair share of the same, or the use of the water at his private place is immaterial. Mrs. Carlton’s liability for one-third of the expenditures in question was independent and in her lifetime was enforceable by an action of assumpsit. 11 Am. & Eng. Ency. L. 1129. Judgment affirmed and ordered to he certified to the pro-hate court.