Livermore v. Rand

Gilchrist, C. J. The administrator is liable to pay the plaintiff for his services from the time he employed him. He stands to the plaintiff in the relation of any other employer. He might have made a special contract, excluding any personal liability on his part, if he had chosen to do so. But as the case stands, there is nothing to relieve him from his liability. No other promise is necessary than that implied from the employment. Trueman v. Tilden, 6 N. H. Rep. 201. After that, the debt, as it accrued, was not the debt of the estate, but of the administrator. A partial payment is not evidence that the account between the parties is unsettled; or, in other words, the payment of a sum of money, without more, is evidence only that the person receiving the money has a claim to that extent against the party paying it. From the mere fact of payment of a sum of money to a person who has an account against the other party, no inference can be drawn except that the party who paid it admitted that sum to be due. It cannot be regarded as a promise to pay any other item in the account. Upon this point, the case of Blair v. Drew, 6 N. H. Rep. 245, is applicable. Mr. Justice Parker there says it cannot “ be contended that because he had proved one item of an account, it was any evidence from which a jury might infer and find other distinct and independent items. Still less would it be contended that an ■account proved, by the plaintiff, was an admission which furnished evidence in favor of another account of independent items offered by the defendant, or that it was of any weight to prove the defendant’s account, even in connexion [91] with other evidence. And if it furnishes no evidence of admission in such case, it can raise no fair admission as against the statute.” The learned judge also says that in the case of Bell v. Morrison, 1 Pet. 360, “ Mr. Justice Story presents in strong terms the danger of permitting an indeterminate and casual admission of the existence of an unsettled account, without any specification of amount or balance, to take a case out of the statute, and let in evidence aliunde to establish any debt, however large, and at whatever distance of time.” This reasoning is applicable here. The mere payment of a sum of money is, at most, only one of those “ indeterminate and casual ” admissions of the existence of an unsettled account, which Mr. Justice Story considered so dangerous. It does not have the effect of taking an account out of the operation of the statute. The account of an attorney for services stands in the same position as any other account, and the statute begins to run from the time the service was rendered. The sum of $52,72, for money paid by the defendant to the plaintiff, and constituting the set-off, should be applied in payment of the earliest charges in the account against the administrator, after his employment of the plaintiff, which are not barred by the statute. Hilton v. Burley, 2 N. H. Rep. 193; Morse v. Woods, 5 N. H. Rep. 297. Where money is paid generally, without any appropriation, he who receives it may appropriate it; and in the absence of any appropriation by either party; the earliest charges, as they are the first due, should be the first paid. It appears from the case that at some time the plaintiff had made a demand of payment, but it is not stated when this was done. At that time, however, a certain sum was due, as we presume, but how much does not appear. That sum, whatever it was, was wrongfully detained after the demand, and it is proper that interest should be cast upon it, in the nature of damages for its detention. [92] The report should be re-committed to the auditor, and the account stated in conformity with this opinion. Report re-committed.