Waite v. Willis

Mr. Justice Wolverton, after stating the facts, delivered the opinion of the court. 1. A question of practice is suggested at the outset, to the effect that by demurring to the complaint the defendant waived his plea in abatement; but it will be more satisfactory to reach a conclusion upon the sufficiency of the complaint, on the one hand, and that of the answer, on the other, and thereby finally settle the controversy. The specific objection to the complaint is that it does not appear therefrom'that the defendant has money in his hands belonging to plaintiff. By a slight transposition of the phraseology, which will indicate more clearly the idea of the pleader, it alleges that the defendant had and received from one Crouch $334.05, in lawful money of the United States, to the use and benefit of plaintiff. Formerly it was essential, in a count for money had and received, to employ the fiction of a promise, but this is no longer required under the Code. The facts should now be stated out of which the cause of action arose, and the law will imply the promise: Hammer v. Downing, 39 Or. 504, 520, 521 (64 Pac. 651, 65 Pac. 17, 990, 67 Pac. 30). The complaint in question shows from whom defendant received the money, and to and for whose use and benefit it was received, namely, that of the plaintiff. This indicates whose money it was, and the law implies the requisite promise on the part of the defendant to render him liable to a money judgment: 14 Enc. Pl. & Pr. 53; Stewart v. Phy, 11 Or. 335 (3 Pac. 443); Betts v. Bache, 14 Abb. Prac. 279. The complaint is therefore sufficient. [290] 2. The answer we deem defective in statement, bnt, waiving that, we are of the opinion the defendant has no legal basis upon which to found his defense. He was employed by the executor while administering the estate, and is not entitled to an attorney’s lien for services rendered in that capacity upon the money or property of the estate coming into his hands professionally. - An executor or administrator may be allowed all necessary expenses incurred in the care, management, and settlement of an estate, including reasonable attorney’s fees in any necessary litigation or matter requiring legal advice or counsel: B. & C. Comp. § 1207. Under this statute the employment of an attorney by an executor is a personal matter, in no way binding upon the estate. However, if the services are necessary, the executor or administrator may be allowed out of the estate a sufficient amount to compensate him for such employment: McCullough’s Estate, 31 Or. 86 (49 Pac. 886). The attorney, therefore, having no claim against the. estate, can have no lien, under the statute, upon the property belonging thereto: De Lamater v. McCaskie, 4 Dem. Sur. 549. It follows that the matter sought to be interposed as a defense is inadequate and insufficient for the purpose, and the judgment must be affirmed. Affirmed.