author: Church, C. J.

text:
    Hawley and others vs. Burgess.
    Land which came to the wife, by inheritance, during coverture, was sold by the husband and wife, and a promissory note for the proceeds taken in the name of the husband, which was handed to her for inspection, and by her returned to her husband, who retained it until after her death. On a bill in equity, brought against the husband, by the heirs at law, of the deceased wife, praying that the defendant might be ordered to deliver said note to them, or be enjoined against its collection, it was held', that neither the statute of 1849, nor that of 1850, relating to the estates of married women, so varied the common law, as to give the heirs of the wife, an equitable interest therein, but that said note belonged to the surviving husband. Held, also, that, such note being personal property, any rights of the wife therein, at her decease, did not descend to her heirs at law, and that their claim thereto could be enforced, only by an administrator on her estate.
    This was a bill in equity,' brought by Joel Hawley and others, against George C. Burgess, praying that the defendant might be ordered to deliver up to the plaintiffs, a certain note of hand, and be enjoined against its collection.
    The cause came to the superior court, at its August term, 1852, when the following facts were found by the court. The plaintiffs were the brother and sisters, sole heirs at law, of Cornelia L. Burgess, the deceased wife of the defendant. Said Cornelia was married to the defendant, on the 19th of March, 1850, and died, intestate, on the 23d of May, 1851. Nelson Hawley, while living, owned certain real estate in Bethlem, and died in January, 1850, leaving said Cornelia, and the plaintiffs, his children and heirs at law, and also leaving said estate, to be distributed among said heirs, as tenants in common. On the 6th of March, 1851, said Cornelia, then the wife of the defendant, jointly with her husband, conveyed all her right, title and interest in said estate, to one Thompson, by deed, duly executed and acknowledged by herself and her husband, for the sum of five hundred and fifty-six dollars and fifty cents, and said Thompson therefor then executed and delivered his promissory note of the same date, thereby promising to pay George C. Burgess, the defendant, five hundred and fifty-six dollars and fifty cents, on the first of April then next. Said note, when so executed, was handed by the defendant, to said Cornelia, who read and approved the same, and returned it to him. On the 1st day of April, 1851, said Thompson offered to pay the amount of said note to said Cornelia, who declined, at that time, to receive it, and requested that it might lie until she should purchase her furniture. Said Cornelia died on the 23d day of May, 1851, and while the note remained unpaid; and the same ever afterward remained in the hands and possession of the defendant. Said Cornelia died, leaving the plaintiffs, her only heirs at law. The sale and conveyance of said land was made by said Cornelia, freely, and with full knowledge of all the essential facts connected therewith, and without any undue influence from her husband ; and said note was written and made payable to the defendant, without any fraud or mistake, and the defendant claimed title to the same, as his own estate, and ever refused to deliver it to the petitioners. There was no contract or agreement, by or between the said Cornelia and her husband, which provided that the avails of the sale of her interest in said land, or that said note, should be or remain, for the use and benefit of the said Cornelia, and not for the use and benefit of the defendant; nor that said note should be taken by the defendant, as trustee, for the sole use and benefit of said Cornelia.
    Upon these facts, the case was reserved for the advice of this court, as to what decree should be passed thereon.

      Phelps, for the plaintiffs,
    contended, 1. That the note sought to be decreed to the plaintiffs, was given for the land of the wife, which had descended to her from her father, and was in force during coverture. The warranty of the consideration is not denied. No act of ownership by the husband, during the coverture, adverse to her separate right, is shown.
    2. The statute of 1849 extends its protection to this note, as the property of the wife. • The defendant affirms this note to be personal property, accruing during coverture, and therefore vested in him.
    The consideration of the note being the land, inherited by the wife, as heir at law, imparts the same character to the note, because the reinvestment, by the statute, is protected from the marital rights of the husband. The note is payable to the husband, who, by the third section of the act, is declared to be the trustee of the wife; it is then taken to the trustee, although the word trustee is omitted. It is the common case of omission to set forth the'character.
    3. The plaintiffs have a right to this note, under the statute of 1850. This statute relates to the sale of the wife’s land, during coverture, irrespective of its derivation. It was for land owned by a married woman, and, is not, in terms, taken in her name, but was invested by her, in the name of her husband, who is constituted trustee for her, by the act of 1849.- Thus she was exercising her dominion over it. She subsequently controlled the terms of payment, and declared her intention, as to the investment. Any one holding the money of another, is a trustee. 2 Sw. Dig., 112. 2 Johns. R., 405. 2 Wend. R., 98. A party in chancery does not lose title, by mistake, accident or ignorance of law, or fact.

      Seymour and Woodruff, for the defendant,
    contended, 1. At common law, the note in question, when made, became the absolute property of the husband, and would have been, if it had been payable to her, and she had kept it in her possession. Whittlesey v. McMahon, 10 Conn. R., 137. Middletown v. Mather, 15 Conn. R., 587. The husband’s common law right is not varied by statute. The act of 1849 relates to personal property, accruing to the husband, by virtue of bequest to her, or distribution to her, as heir at law. This note did not accrue to the husband, by virtue of bequest or distribution to her, but by voluntary sale of her property. The act of 1850 provides, that when the real estate of the wife is sold, and the avails thereof secured or invested in her name, or in the name of a trustee for her, the same shall, in equity, be deemed to belong to her. In this case, the avails were not so invested, but were invested in the husband’s name alone, with her approbation. The court finds there was no fraud, nor mistake, nor undue influence, and that the sale was made freely; that the note was read by the wife ; that she approved of it, and delivered it to her husband.
    2. The heirs can not maintain this bill. If the note was the property of the wife, on her decease, it vested in her executor or administrator. He alone is entitled to the possession of it. It is subject to the payment of her debts, contracted before coverture, and may be needed for that purpose. That fact must be ascertained, by a regular course of administration, and if any property remains, it may be distributed to those who are shown to be her heirs at law. West v. Howard, 20 Conn. R., 581.
   Church, C. J.

The case before us, among other facts,

finds, that Cornelia L. Burgess, while the wife of the respondent, became entitled, by inheritance, to certain real estate, and that, during the coverture, jointly with her husband, she executed a deed of the same, to James Thompson, who gave the note in question, as the price of the property, and made it payable to the husband of the said Cornelia, the present respondent. The note, as soon as it was executed, was handed by the husband to the wife, for her inspection, and by her approved and returned to her husband, who has ever since retained it, and now claims it as his own property. The wife died in a few weeks afterward, leaving only -the present plaintiffs, her brother and sisters, her heirs at law.

The question is, do this note and its avails belong to the surviving husband, or to the heirs at law of his wife ?

At common law, this note belongs to the husband; the money, if paid, would have been his, as soon as paid, and the note is payable to him, to whom by law, the money belonged. And if the note had been payable to her, it would have been the same. 1 Sw. Dig., 27. Cornwall v. Hoyt, 7 Conn. R., 420. Whittlesey v. McMahon, 10 Conn. R., 137. Ecc. Society v. Mather, 15 Conn. R., 587. 14 Conn. R., 99. It is claimed by these heirs, that the statutes of this state, of the years 1849, 1850, one or both of them, have changed the common law on this subject, and have given the equitable interest, at least, in this note, to the wife and her heirs. We do not think so.

• The statute of 1849 provides for, and secures the rights of the wife, to such personal estate as shall, during the coverture, accrue to her, by reason of any bequest or distribution, and the avails of it; but the present is the case of real estate, and so not within the enactments of that law.

There is more doubt, in the construction of the statute of 1850, but a majority of the court think, that this can not be so extended, beyond the obvious import of its language, as to embrace this case and affect the claim of the husband to this note. It enacts that, when “ the real estate of a married woman has been, or shall be, sold, and the price or avails thereof secured or invested in her name, or in the name of a trustee for her, or for her benefit, the same shall, in equity, be deemed to belong to her,” &c.

There can be no reasonable pretence, that the avails of this land of the wife, were either secured or invested in her name; on the contrary, with her full approbation and knowledge, the noté was taken in her husband’s name. She could have directed it differently, if she would, and have insisted on her newly acquired, or statute rights. Nor do we see, from the facts found, any evidence of an intention to constitute the husband a trustee for the wife, or that he should act as such. He received the note, in his character and capacity as husband, for his own use, and not for hers; this, we infer from the facts, and this may be said to be the legal presumption. Afterward, without the knowledge or concurrence of the husband, the payer of the note offered to pay it to the wife, and she refused the offer, and requested that it might lie, until she should purchase her furniture. But this act or offer of thé maker of the note, without the privity of the husband, could not change the character of the note, nor the right of the husband to it; nor could anything, said by her at that time, have that effect.

But we believe that there is another objection to a recovery by these plaintiffs. They are the heirs at law of the deceased wife, and sue here, only in that capacity. The property in dispute is personal property, and, as such, did not descend to these heirs, and can be claimed by them only by distribution, under an administration upon the estate of the deceased. There may be creditors, having claims of payment against this estate, and therefore, an administrator should have been appointed, who could have asserted the rights of the wife, against her surviving husband, for the benefit of her creditors and heirs.

For the reasons we have suggested, this bill must be dismissed.

In this opinion the other judges concurred.

Bill dismissed.


source: Caselaw Access Project

author: Stores, J.

license: Public Domain

text:
    Seger vs. The Town of Barkhamsted.
    In an action brought against a town, upon the statute “ concerning highways and bridges,” for injuries, by reason of a defect in a bridge, averments respecting an injury to the person of the plaintiff can be united, in each count of the declaration, with averments respecting an injury to his property ; although damages for these different injuries are given by different sections of said statute.
    In the assessment of damages, for a personal injury, the jury have a right to consider the peril and danger to which the person of the plaintiff was exposed, by the accident producing the injury.
    Upon the trial of an action, brought upon said statute, by A, against .the town of B, to recover damages for injuries occasioned by negligent defects in a bridge, the court rejected evidence, offered by the defendants, of a contract between A and B, in which A agreed to replank said bridge, with good, new, oak plank, and the breach of said contract by A; but permitted the defendants to prove, that the plaintiff, in repairing said bridge, used defective plank, and instructed the jury, that if the plaintiff, in repairing said bridge, wrongfully or improperly put defective plank, or other defective material, into said bridge, by reason of which, in any essential degree, the injury complained of, was occasioned, he was the author of his own misfortune, and could not recover. Held, that, as the defendants could not, in such action, recover of the plaintiff, or set off any damages which they might have sustained, by reason of a breach; of that contract, and the defendant’s non-performance constituted no defence to the same, proof of the terms and breach of said contract was irrelevant, and properly rej ected. Held, also, that the charge was correct; and that the terms, “wrongfully and improperly,” could not lead'the jury to suppose, that the existence or breach of the contract, were questions that were to be decided by them.

      This was an action upon the statute “ concerning highways and bridges,” brought against the town of Barkhamsted, for injuries suffered by the plaintiff, in his person and property, by reason of a defect in the covering of a bridge in said town, and the want of a railing on the sides thereof. The declaration contained three counts, which were essentially alike. The third count, which was principally relied on in the argument, substantially averred, that it was the duty of said town, to build, maintain and keep said bridge in good and sufficient repair; that the same was out of repair, defective and insufficient, and unsafe for travelers ; that said bridge was raised and elevated above the adjoining ground, and so as to endanger the safety of travelers, in passing over said bridge, without a railing or fence upon the sides of said bridge; and that it was the duty of said town to build, maintain and keep a good and sufficient railing or fence upon the sides of said bridge, yet the said town had wholly neglected and failed to keep and maintain such railing or fence, and that said bridge was without any sufficient railing or fence, contrary to the statute in such ca'se made and provided; that the plaintiff, on the 27th day of February, 1851, was passing over said bridge, in his wagon, when the horse of the plaintiff, in consequence of a hole in the floor of said bridge, stepped through said bridge and became frightened and unmanageable, and, without any fault of the plaintiff, ran off the side of said bridge, for want of a railing or fence, upon the sides of said bridge, and fell upon the rocks and stones under and by the side of said bridge, by means of which, the plaintiff, and also his horse and wagon, were injured ; and he became entitled to demand and recover damages of the defendants; whereby the defendants became liable to pay to the plaintiff just damages for the injuries he sustained, in his person and property.
    The cause was tried before the jury, at Litchfield, February term, 1853.
    On the trial, it was admitted, that it was the duty of the town, to erect and keep the bridge in question, in repair; that said bridge was elevated above the bottom of the stream, six or eight feet; and that there was not, and never had been, any railing on the sides of it.
    The plaintiff claimed, and introduced evidence to prove, that he was passing over said bridge, in a one-horse wagon, at the time alleged in the declaration ; that the covering of said bridge was out of repair, and particularly, that one of the planks covering the bridge had been broken in two, and the place of the break covered over with a slab, and that.it had been in this situation, for several months ; and his horse stepped upon said plank, and his foot went down through said break, which caused him to spring violently, so that he leaped over the side of said bridge, and was, together with said wagon, precipated over the side of the bridge, and upon the rocks and into the stream below, and he himself thrown upon said bridge ; and that thus the injuries complained of were occasioned.
    The defendants offered evidence to prove that, about a year before.said injuries were received, the selectmen of Barkhamsted contracted with the plaintiff to re-plank said bridge with good, sound, new oak plank ; and that the plaintiff, upon sufficient consideration; undertook and contracted to remove the old plank from said bridge and to re-plank the same as aforesaid; that the plaintiff represented to said selectmen, that he had fulfilled said contract, and had received payment for the same ; but that, in truth, the plaintiff never did fulfill said contract, but only re-planked said bridge in part; and that he used, in re-planking it, some of the old plank, formerly used thereon, which the defendants claimed were defective, by reason of which said horse broke through and leaped over the side of the bridge.
    To the admission of the proof of said contract, and the breach thereof, in evidence, the plaintiff objected, and the court rejected the same, but decided that the defendants might prove, that the plaintiff, in covering and re-planking said bridge, used defective plank, and that, by reason of said defective plank being so used, the plaintiff’s horse stepped or broke through said bridge; and the defendants thereupon introduced evidence conducing to prove the same.
    And the plaintiff introduced evidence to prove, that he re-planked said bridge entirely with good, new oak plank, proper to be used for the same, and that the plank, thus broken, was a sound plank, and had, some months before said injuries were received, been broken, by the transportation of heavy loads of stone across said bridge.
    The court charged the jury, that, if they found that the plaintiff himself wrongfully or improperly put defective plank, or other defective materials, into the covering of said bridge, by reason of which, in any essential degree, this injury was occasioned, and was thus essentially the author of his own misfortune, he could not recover. The jury, after consultation, returned into court and inquired whether, if they found a verdict for the plaintiff, they had a right, in the assessment of damages, to take into consideration the peril and danger to which the plaintiff was exposed, and whether they had a right to indemnify the plaintiff for his reasonable éxpenses in prosecuting the action. To which the court replied, that they had a right to consider all the circumstances of danger and peril attending the accident, but, in actions on this statute, unless there was evidence of wanton and willful neglect of duty, on the part of the town, that it would not be proper for them to give damages, for the purpose of indemnity against the expenses of litigation.
    The jury returned a verdict in favor of the plaintiff, for three hundred dollars damages. The defendants then moved in arrest of judgment, for the insufficiency of the declaration. They also moved for a new trial, on the ground that the court erred, in rejecting the evidence, offered as aforesaid, and in the instructions given to the jury ; and the questions of law arising’ on both said motions, were reserved for the consideration and advice of this court.

      Goodwin and Hubbard, for the motions,
    contended, 1. That the declaration is insufficient; because, in each count, injury to the person, and also to the property, of the plaintiff, being distinct causes of action, on distinct sections of the statute, are united. This tends to confusion and embarrassment in assessing damages.
    2. That the town had a right to prove a contract with the plaintiff, and that he represented to them, that he had fulfilled the same, whereas he had not so done. Had the defendants been permitted to resort to this, it would have constituted a complete defence. The court charged the jury, that, if the plaintiff had wrongfully put defective plank on the bridge, by reason whereof, the injury was, in any essential degree, occasioned, he could not recover. ■ The defendants could not prove this to have been done wrongfully, without proving the stipulations of the contract.
    3. That the charge, that in assessing damages, the jury might take into consideration the plaintiff’s peril and danger, was erroneous. The damages, recoverable against a town, under the statute “ concerning highways and bridges,” are for the injury only to the person or property, and not on account of danger or peril. 1 Cush. R., 451. They are a recompense for an actual injury, with which they should be commensurate. 7 Mass. R., 256. 2 Green. Ev., 244. There is no averment of danger or peril, in the declaration.

      Sanford and ■ Mills, contra,

    contended, 1. That, if either count was good, the motion should not prevail; and that the third count contained all .the necessary allegations.
    2. That proof of the contract, and of the breach thereof, was properly rejected. If the plaintiff’s misconduct was, in any essential degree, the cause of his misfortune, he was not entitled to recover ; and that the court decided the defendants might prove.
    3. That the jury were correctly instructed, that they might “ take into consideration the circumstances of danger and peril attending the accident.” It is a rule, of universal application, that the jury must consider all the circumstances accompanying the event about which the suit is conversant. 2 Green. Ev., 245, n., 248, 249, n. 5 Day, 144. 13 Conn. R., 320.
   Stores, J.

On the motion in arrest of judgment,.in this

case, the defendants object, that the declaration is bad, on the ground that, in each count, the injury to the person of the plaintiff is united with the injury to his property : which they claim can not properly be done, because the damages against towns for these several kinds of injury, are given by different sections of the act “ concerning highways and bridges;” damages for the former injury being given by the fifth, and for the other, by the sixth section. This objection should not prevail. The claim of the defendants is, that where, in consequence of a negligent defect in a highway or bridge, one’s person and property are injured at the same time, he must sue for them separately, and can not recover damages to both of them in one action, or, what in principle is the same, that he must insert a count in his declaration for each. Separate actions, in such. cases, would be contrary to the immemorial practice, and to require them- would produce a useless and burdensome multiplicity of suits, be opposed to the general principles of law, in regard to the dividing of claims growing out of the same transaction, and, in our opinion, would not be in accordance with a just construction of the statute. But, if the declaration were faulty in this respect, the objection is only one of duplicity, which is merely a defect of form, of which advantage must be taken by special demurrer. If different species of actions, or a different rule of damages, were prescribed for these two kinds of injury, the case might present another question; but that is not the case. Judgment, therefore, should not be arrested.

The defendants next claim, that there should be a new trial: 1, because the judge below excluded proof of the contract between the plaintiff and defendants, in relation to the repairing of the bridge, and the breach thereof; and, 2, because he instructed the jury, that, in the assessment of damages, they had a right to consider all the circumstances of danger and peril attending the accident.

1. As to the first ground, it appears by the motion, that, while the judge excluded evidence of the contract and its breach, he permitted the defendant to prove, that the plaintiff, in repairing the bridge, used defective plank, and that, by reason of their being so used and put into the covering of the bridge, the plaintiff’s horse broke through it; and that he charged the jury, that if they found the plaintiff wrongfully or improperly put defective plank, or other defective materials, into the covering of the bridge, by reason of which, in any essential degree, the injury complained of was occasioned, and he was thus essentially the author of his own misfortune, he could not recover. We think that this was the correct course. The defendants could not, in this action, recover of the plaintiff, or set off any damages which they might have sustained, by reason of a breach of that contract by the plaintiff, nor could the fact that it was not fully performed by the plaintiff, constitute any defence to this suit; because the breach might have been in a particular which did not produce, or contribute to, the accident by which the injury was occasioned. Such breach, however, might have been one which did cause or contribute to that accident; as, for instance, the putting of defective plank in the covering of the bridge, in the manner claimed 'by the defendants. In that case, the placing of such defective plank there, being the act of the plaintiff himself, it could not be said to be owing to the negligence of the defendants, and therefore it would constitute a defence. It would, however, be a defence, not because this act of the plaintiff was a violation of a contract between him and the defendants, but because it would be the wrongful and improper conduct of the plaintiff himself, for the consequences of which he could not complain, whether there had existed any such contract between the parties or not, or whether the act was or was not a breach of it. It would be sufficient for the defendants to show, that the injury was occasioned in whole, or in any essential degree, by the act of the plaintiff himself. Whatever might be the terms of the contract, if they proved that fact, this defence would be made out; if they did not, it would fail. Hence, it is obvious, that proof of the existence, terms, or breach, of the contract, was entirely immaterial and irrelevant. The course taken by the judge below, in regard to the admission of the evidence, and the principle laid down by him, in the charge, was in precise accordance with these views.

The defendants insist that the court below, by submitting to the jury the question, whether the plaintiff wrongfully and improperly put defective plank or other defective materials into the covering of the bridge, required, or at least would be understood by the jury to require, them to find, whether there was a contract between the parties on the subject, and also, whether the plaintiff complied with its terms; and, therefore, that the defendants should have been permitted to prove the terms of the contract and its breach. We do not think that those adverbs were, or would be understood to be, used in reference to the existence or fulfillment of any contract between the parties, or that such is the fair import of the phrase used by the judge. There was no evidence of any contract before the jury ; that topic could not with propriety, and presumably was not, commented on before the jury; there was nothing to lead them to suppose, that it was intended to be adverted to in the charge; and it is not, therefore, to be supposed that it entered into their deliberations.

The defendants further claim, that the evidence which was excluded, tended to prove that the plaintiff, by bis representations to the defendants, that the contract was fulfilled, designedly misled the latter into a belief, that such was the case, and thereby induced them to forego any further repairs upon the bridge, and that, under those circumstances, the plaintiff would be estopped from denying the truth of such representations. We are by no means prepared to say that, on that state of facts, it would be competent for the plaintiff to set up, that the injury complained of, was occasioned by the negligence of the defendants. But we do not think, that the motion shows, that the evidence offered, laid the foundation for this claim, or that it was distinctly or intelligibly made on the trial; and therefore, according to a well established rule of this court, a new trial ought not to be granted, on this ground.

2. The remaining question is, whether the judge below was correct in instructing the jury that, in the assessment of damages, they might consider the peril and danger to which the plaintiff was exposed, by the accident which produced the injury complained of. We think that this part of the charge was right. It embraced the peril to the person only of the plaintiff,—not to his property. It is not necessary to inquire, whether or how far, in an action like the present, vindictive' or punitory damages are allowable. That the plaintiff is entitled to be compensated for his actual personal injury, there is, of course, no question : and that principle is sufficient to vindicate the charge, on this point. Such actual injury is not confined to the wounds and bruises upon his body, but extends to his mental suffering. His mind is no less a part of his person than his body: and the sufferings of the former are oftentimes more acute and also more lasting than those of the latter. Indeed, the sufferings of each, frequently, if not usually, are reciprocally ornthe other. The dismay, and the consequent shock to the feelings, which is produced by the danger attending a personal injury, not only aggravate it, but are frequently so appalling as to suspend the reason and disable a person from warding it off; and to say, that it does not enter into the character and extent of the actual injury, and form a part of it, would be “ an affront to common sense.”

For these reasons, the judgment should not be arrested, nor a new trial granted. ■»

In this opinion, the other judges concurred, except Church, C. J., who, having heard the cause in the court below, was disqualified.

New trial not to be granted.


author: Waite, J.

text:
    Beckley vs. Munson.
    Where personal property was conveyed by a mortgage bill of sale, with power to sell and dispose of the same, or to manufacture it, in whole or in part, and the mortgagee exceeded the power conferred upon him, but the mortgager subsequently executed a bond, which recognized and sanctioned the acts of the mortgagee,—it was held, that such instrument bound the mortgager, in the same manner, as if the power to do acts had been originally conferred upon the mortgagee, by such mortgage.
    If a mortgagee, holding property under a mortgage, with power to sell, or manufacture, exceed the power conferred by such mortgage, he is liable, for any loss which may result therefrom, unless there be a subsequent ratification of his acts, by the mortgager.
    Parol evidence is not admissible, to vary a written instrument.
    A trustee who] compromises a claim against his cestui que trust, for less than the amount actually due, is not entitled to charge, in his account, a greater sum than the amount actually paid by him. Nor is the principle varied, where the compromise is effected by a copartnership, of which the trustee is a member.
    Where it was stipulated, that, if the defendant should be obliged to sell any of his own property, at a loss, to raise funds, to pay the debts of the plaintiff, such loss should be reimbursed to him, and the defendant sold railroad stock and bonds, bearing interest at seven per cent, for that purpose ; it was held, that the only loss for which he could claim to be reimbursed was, the amount of actual sales, the broker’s fee for selling, and the fair market value, at the time of sale ; and that neither a rise in value, of the property sold, subsequent to such sale, nor subsequent dividends, nor interest accruing thereon, could be taken into account, in ascertaining the amount to be reimbursed.
    Where a bill in equity, for an account is brought, by the mortgager of personal property, against the mortgagee, the latter can not charge, in his account, the expense incurred by him, in such action. And his right even to taxable costs, will depend upon the manner in which the trust has been executed.
    A mortgagee, to whom property has been conveyed, to be converted into money, and applied to the payment of debts, can not subject the mortgager to a loss, incurred by exchanging the same for railroad stock,—and, where such exchange was made, and the stock kept on hand, for nine months, the mortgager receiving the dividends, and then sold, for less than the price at which it was originally taken, it was held, that, the mortgager was not liable for such loss. “
    Where one partner, having a large pecuniary interest in the firm, but being individually a debtor thereto, for a certain amount, as appeared, by entries on their books, sold and conveyed to the other partner," all his right, title and interest in and to all the property and estate, real, personal and mixed, belonging to, or which of right ought to belong to said firm it was held, that such conveyance transferred to the other partner, only his interest in the concern, which remained, after deducting such indebtedness; and, that the amount, so charged to him individually, could not thereafter be collected of him.
    Where the surety on a note, being indemnified for his liability, incurred expenses, in defending a suit, brought for the collection thereof, which defense was made, contrary to the expressed wishes of his principal, and after being notified by him, that there was no defense to such action; it was held, that the principal was not liable to the surety, for such expenses.
    This was a bill in chancery, praying for an account of certain property, conveyed to the defendant in trust.
    The cause was referred to a committee, who, in their report, among other matters, found, that, on the 28th day of March, 1848, the plaintiff and William G. Pierce, were partners, in the name of Beckley & Pierce, in the manufacture of pig-iron, and were also partners with Henry L. Mun-son, in the name of “ J. A. Beckley & Co.,” in mercantile business.
    Beckley & Pierce, on that day, executed to the defendant and Sally Beckley, a mortgage-deed of certain real estate, the condition of which, was, that if the mortgagees paid, within one year from the date of said deed, certain claims against them, amounting in the whole, to about $17,000, (including debts to the said Sally, of about $2,500,) which the defendant had agreed to pay, the deed was to be void.
    They also executed and delivered to the defendant, a mortgage bill of sale of certain railroad stock, coal, iron-ore, wood, and other articles of personal property, which he was authorized to sell and. dispose of, or manufacture, in whole, or in part, as he should see fit,—the condition of which was, that if they paid certain specified debts, (substantially the same as those described in the mortgage of the real estate,) which the defendant had agreed to pay, the bill of sale was to be void.
    They afterward, and, on the same day, executed to the defendant, another instrument, in which they stated, that it was deemed necessary for their interests, that the defendant should operate their ■ furnace, standing upon the premises mortgaged to him, for the purpose of realizing the most from the property conveyed to him, the profits of which were to be applied to the extinguishment of their debts, and agreed, that in case he should be obliged to sell any of his own property, at a loss, to raise money to meet their debts, they would reimburse the loss to him, and would allow him for operating the furnaces, at and after the rate of $1,500 per annum.
    J. A. Beckley & Co., and the defendant, on the same day, executed another instrument, by which they conveyed to him, the goods in their store, which he agreed to take at cost, and apply the amount in the payment of certain debts of the company, part of them mentioned in the mortgage deeds, amounting to about $3,100, if sufficient for that purpose, and account for any balance, that might remain.
    Henry L. Munson subsequently conveyed to the plaintiff, all his interest in the property of J. A. Beckley & Co., and thereupon ceased to have any interest therein.

      The defendant, immediately thereafter, took possession of all the property, real and personal, conveyed to him as aforesaid, and ran the furnace, until the 16th day of May, 1849, when Pierce assigned to the plaintiff, all his interest in the property mortgaged to the defendant, except the real estate owned by him ; and the plaintiff, as principal, and the defendant as surety, gave him a bond, agreeing to indemnify him. from all the debts of the two firms of which he was a member, and the debts contracted by the defendant, as mortgagee.
    The plaintiff, at the same time, in addition to his former mortgages, conveyed to the defendant all his interest in about eight or nine hundred tons of pig iron, then in possession of the defendant,—all the debts due to the late firms of Beckley & Pierce, and J. A. Beckley & Co., and certain other personal property, which conveyance was to be void, provided the plaintiff paid certain specified debts amounting to some $7,000, which the defendant had assumed to pay, and four promissory notes of the plaintiff, to Pierce, signed • by the defendant as surety, given upon the purchase of his interest in the property of the two firms, and amotmting to about $3,700,—and also indemnified and saved the defendant harmless from the bond to Pierce. And it was agreed, by the plaintiff, in' the mortgage, that the defendant, in order to raise funds to discharge said debts, might, at any time, dispose of the property, accounting with the plaintiff, for any balance that might remain, after said debts should be paid and the defendant indemnified.
    The defendant took possession of the property, thus conveyed to him, and operated the furnace in the manufacture of pig iron, until the 15th of April, 1850,—having the use of the plaintiff’s real estate, mortgaged to him, and receiving the rents and income thereof, and assumed all the responsibilities and trusts, imposed upon him by said deeds, and in the prosecution of the business, and settlement of the debts, contracted new debts and liabilities, to a large amount, and paid large sums, in fulfillment of contracts previously entered into by the plaintiff.

      In the early part of 1849, the iron market became very much depressed, and so continued, until the spring of 1851, in consequence of which, only comparatively small quantities of iron could be sold, and those, only at diminished prices; and, although the defendant was occasionally advised and requested, by the plaintiff, to sell iron for what it would bring, rather than suffer interest and expenses to accumulate, yet the defendant kept on hand, during a portion of that time, from twenty to thirty thousand dollars worth of iron, whereby considerable losses accrued, but the defendant, in so doing, acted in good faith, and, as he believed, for the interest of the plaintiff and his creditors.
    The defendant’s liabilities, for debts originally incurred by him, and subsequently contracted in the manufacture of iron, were, at various periods, not less than from thirty to forty thousand dollars, and, not being able to realize the necessary funds from the property mortgaged to him, he was obliged to resort to his private means, to the amount of several thousand dollars.
    After the lapse of about two years, principally by reason of the operation of the furnace, new debts had been contracted, many of the old ones remained unpaid, and the closing of the trust was apparently as distant as at the time it was created. The depreciation of iron, the accumulation of interest, and the salary of the defendant, alarmed the plaintiff and many of his creditors, and subjected the defendant to numerous complaints, both for neglect and mismanagement, and a disposition to protract and delay the settlement of the trust.
    The plaintiff, being desirous of diminishing the expenses incident to the trust, closing it up, stopping the salary of the defendant, and carrying on the business at the furnace himself, procured and delivered to the defendant, a bond, in the penal sum of $25,000, signed by himself and numerous securities, to indemnify the defendant against the claims and demands, for which he was liable for the plaintiff, and thereupon the defendant released to the plaintiff all the real estate of the plaintiff, mortgaged to him.
    This bond was given under the expectation, on the part of the plaintiff and his .sureties, that the residue of the property held by the defendant in trust, consisting in part of about 850 tons of pig iron, and in part of debts and other personal property, should be sold, or converted into available means, to meet the outstanding liabilities, and that said trust should be closed up, as soon as practicable, which, it was believed, by all parties, might be done in some four or six months.
    In this bond were recited the conveyances made to the defendant, the operation of the furnaces by him, his becoming surety for the plaintiff,—and, among other matters, it was stated that, for the benefit of the business carried on by the defendant, he had indorsed and become surety for Huntington <§• Day, to the amount of some 7 or 8,000 dollars; 'and, as mortgagee or otherwise, was liable to pay all the debts and claims that were then outstanding and unpaid, which had been contracted in his said business. The balance-then due the defendant, for advancements made by him, for the benefit of the business, for his salary, fees and expenses in conducting the business, was supposed, in said bond, to amount to about 825,000; his liabilities were estimated at 8-26,000, and the assets in his hands at about $50,000: And it was further stated, in the bond, that it was understood that the defendant would, as soon as could conveniently be done, and^according to his best judgment, convert the property remaining in his hands into money, and apply it toward his debt and liabilities.
    It was provided, that the bond should be void, if the obligors indemnified and saved the defendant harmless from all claims, debts, and liabilities, for which he had or might become liable, in the business conducted by him, and paid him what advances he had made, his salary, and what might be due him, from the plaintiff, after faithfully applying the avails of the property remaining in his hands, as fast as might conveniently be done.
    It was further found by the committee, that in August, 1848, the defendant, with the knowledge and approbation of the plaintiff, commenced the sale of pig iron to Huntington & Day, to be by them manufactured into bloom and bar iron, receiving in payment, at the end of every month, the notes of Collins & Co., to whom their manufactured iron was sold. Afterward, when their credit had become im-, paired, and their responsibility regarded as doubtful, the defendant continued to furnish them with iron, gave them his notes, indorsed theirs, and suffered them to draw orders, upon his responsibility, to enable them to keep their works in operation, pay their workmen, and defray their other necessary expenses, until June 3, 1850, when their indebtedness to him, and his liabilities for them, amounted to $9,206.33, upon which there was a final loss of $1,206.42» which loss the defendant charged, in his account against the plaintiff.
    On that day, Huntington having gone to California, where he subsequently died, Day, the other partner, mortgaged to the defendant, all their real and personal property, as security for their indebtedness and his liabilities. The mortgage was given to him, personally, without any description of him, as a mortgagee or trustee of the plaintiff.
    The defendant, supposing it would be more advantageous to all parties in interest, to convert the pig iron on hand, into bloom and bar iron, undertook to operate the furnace mortgaged to him by Huntington & Day, and continued to operate it, until August, 1851, whereby he sustained a further loss of $6,512.15, which he also charged to the plaintiff.
    The plaintiff was aware that sales of iron were made by the defendant, as mortgagee, to Huntington & Day, (but not of the amount,) and that the mortgage was taken for his benefit. But he supposed that the sales were made, under an arrangement, that the defendant was to receive good notes, in payment, at the end of each month, or retain in his hands so much of the bloom and bar iron manufactured by them, as would secure their liabilities, except so far as more definite knowledge and approbation of the defendant’s dealings ought to be inferred from the aforesaid bond.
    While the defendant was operating the furnace of Huntington & Day, he supposed that the plaintiff was aware, that he claimed to be acting for him, and the plaintiff supposed he was acting for the mortgagees, and was accountable to the plaintiff, for the stock of the plaintiff used in said business.
    The defendant, in his general account, charged for his salary, $5,660. . In reference to this subject, the committee found,' that when the writings were drawn, the defendant claimed, that the trouble to which he might be subjected, could not then be known, and that, while he proposed that $1,500 should be inserted, as the price of his salary, he should not expect to charge that amount, unless he was subjected to unforeseen losses or unanticipated trouble. All parties, at that time, supposed the trust would be closed in six or twelve months, and that the plaintiff and Pierce would superintend and manage the furnace, and the manufacture of iron ; and it was under these circumstances that that sum was inserted in the agreement.
    And, if the writing is not to govern the amount of salary, the defendant’s services from April 1,1848, to the middle of May, 1849, while the plaintiff and Pierce were running the furnace, under the charge of the defendant, were not worth more than at the rate of $800 per annum; but, from that time until November 1, 1850, when said trust might have been closed up, but for operating Huntington & Day’s furnace, as contemplated by the parties, when the aforesaid bond was given, the sum of $1,500, per annum, was no more than a reasonable compensation for his trouble; nor was that salary more than was reasonable, up to the time of closing that furnace, on the first day of August, 1851. But, from that time to January 6th, 1852, $200 would have fairly paid for any services rendered in relation to the trust.
    The committee further found, that H. Chapin & Co., of which firm the defendant was a member, and in which he was interested, to the extent of two-thirds of the profits of the business, purchased two claims against the plaintiff, at a discount of $136.76, and the defendant charged in his account, the full amount of those claims.
    The first cost of the goods sold by J. A. Beckley & Co., to the defendant, amounted to $3,182.70. They were afterward, by him, transferred and delivered tó H.' Chapin & Co., and, upon complaint made by Chapin, several months thereafter, that some of the articles had been injured, and were not worth the stipulated price, it was agreed that there might be a deduction of $42.10, and they were so credited by the defendant, and interest allowed upon them, from January 1st, 1849, except on $522.44, upon which interest was allowed from May, 1848.
    The defendant, fin order to meet certain debts of the plaintiff, and having no funds from which the amount could be raised, except said iron, sold certain railroad bonds, bearing an interest of 7 per cent., and certain railroad stock, paying a dividend of 5 per cent, semi-annually The difference between the interest on the bonds and 6 per cent., up to March 1st, 1851, was $79.16, and the difference between the dividends upon the stock and interest to that time, was $133.33, and the difference between the value of the stock, when sold, and at that time, was $200. The defendant paid for brokerage on such sales, $9.65. These sums the defendant charged to the plaintiff.
    The committee further found, that the defendant had expended and charged $177.32, for taking depositions to be used before the committee, in attending to the taking of the plaintiff's depositions, for board of counsel on the trial, and their services ; in addition to which, other expenses had been incurred in the suit, which could not then be ascertained, and which the defendant would subsequently produce to the court.
    The defendant, in October, 1850, sold a quantity of iron, of the plaintiff, to the amount of $2,000, and received in payment, twenty shares of railroad stock, then its market value, and kept the stock until July 16, 1851, receiving in the mean time, $105, in dividends, and then sold it for $1,575, and paid $10 for expenses of sale. He charged the losses arising upon this transaction, to the plaintiff.
    After the mortgage to the defendant, of the property of Huntington & Day, and in consequence thereof, several of their creditors instituted suits against them, and factorized the defendant, and after several trials, it was found in all the suits, that the defendant was not indebted to them. In defending these suits, the defendant expended $197 more than he recovered, which sum he likewise charged to the plaintiff.
    When Pierce conveyed his interest in the property of Beckley & Pierce, to the plaintiff, on the 16th of May, 1849, and the same was mortgaged anew to the defendant, the plaintiff as principal, and the defendant as surety, gave to Pierce, in part payment therefor, a negotiable note for $1,300, payable some months thereafter. Pierce, as claimed by the defendant, was indebted to the firm, on his private account, in a large amount, which, as the defendant claimed, was mortgaged to him. When the note fell due, it devolved upon the defendant to pay it, and he supposed and claimed, that the debt due from Pierce ought and could be applied in part payment of the note. But the plaintiff in his negotiation with Pierce, had verbally agreed, that said debt should not be collected, but be discharged, and so notified the defendant, before any suit was commenced on the note, but the defendant was no party to that agreement, and never assented to the same. Pierce commenced a suit upon the note, and the cause was referred to auditors, who reported in favor of Pierce, but the case still remained in court. The defendant charged, in his account, $156.59, fees paid counsel for defending said cause.
    The committee found a balance, according to the defendant’s account, embracing the items charged by him as aforesaid, of $14,367.54, subject to such modifications as the superior court might deem proper, upon the report of the committee.
    The questions of law arising upon said report were, by the superior court for the county of Litchfield, reserved for the consideration and advice of this court.

      Perkins and O. S. Seymour for the plaintiff.

      Hubbard and Sanford for the defendant.
   Waite, J.

The first question, arising in the case, is,

whether the defendant has rightfully charged the plaintiff with the losses, growing out of his business connection with Huntington & Day.

By the terms of the original conveyance, the defendant, for the purpose of raising money, to pay the debts assumed by him, was authorized to sell and dispose of the personal property assigned to him, as he saw fit.

Under that authority, he had a right to sell them iron, and upon credit, if necessary, and, had a loss arisen upon such sale, fairly made, it might, undoubtedly, have been charged to the plaintiff: so far, he might be considered as acting within the scope of his authority, as originally conferred.

But he has gone further, and not only sold them iron, but loaned them money, indorsed their notes, and guaranteed the payment of their orders, to enable them to carry on their business. No such power was conferred upon him, by the instruments creating the trust, and, had the plaintiff done nothing more, he would not be liable for any loss, beyond such as arose from the sale of iron.

But, although the defendant acted originally without authority, yet, if his acts were done for the benefit of the trust, and were subsequently ratified by the plaintiff, with full knowledge of them, such ratification will bind him. And, so far as the defendant’s transactions with Huntington & Day, are concerned, down to April 15th, 1850, we are inclined to think, they have been ratified by the plaintiff’s bond, of that date. That instrument was given, that the defendant might be indemnified for his liabilities, incurred in the execution of the trust. And, among the liabilities thus enumerated, is the one growing out of the Huntington & Day business. The language of the condition of the bond is, that, whereas the defendant, for the benefit of the trust business, has indorsed and become surety for Huntington <$• Day, to the amount of some seven or eight thousand dollars, thereby recognizing the defendant’s liability, as indorser and surety, as having been incurred for the benefit, and in execution of the trust, and against which the plaintiff agreed to indemnify him.

The defendant continued his business with them, as it had previously been conducted, until the third day of June, following, when they failed, and a new and different arrangement was made with them. The loss, growing out of that business, down to that period, amounting to $1,206.42, we think, may rightfully be charged against the plaintiff, in consequence of the ratification contained in his bond, given a short time previous.

But, after that time, the defendant, instead of aiding Huntington & Day, with means to carry on their business, took their furnace into His possession, and continued the operation of it, for more than a year afterward. We discover nothing, in any of the documents, or in any act of the plaintiff, authorizing this to be done at his expense.

He indeed knew of the mortgage from Day to the defendant, and supposed it was given for his benefit, that is, to secure those liabilities, for which the plaintiff had rendered himself liable, by virtue of his bond ; but, at the same time, supposed that the defendant, in the management of their furnace, was acting as their agent, and, in that capacity, accountable to him for the iron used in the business,—a conclusion that any person, under such circumstances, would naturally have drawn, especially as it is not claimed, that the defendant ever consulted with the plaintiff, respecting the last arrangement.

Besides, the mortgage from Day was given to the defendant, in his own name, without any reference to his character, as trustee for the plaintiff,—a strong circumstance, indicating that it was then his intention to act for himself, and not for the plaintiff. But, as a heavy loss has been sustained in that business, he now claims a right to throw that loss upon the plaintiff.

Had the business been profitable, there is nothing in the case, showing that the plaintiff had any right to share in the profits. We think the defendant had no right, in the faithful execution of his trust, to place himself in such an equivocal position, that, if the business of operating the furnace of Huntington & Day, should prove successful, he could pocket the profits, and if unfortunate, charge the loss to the plaintiff. He should have either confined himself within the scope of the authority conferred upon him, or sought new power from the plaintiff.

The loss sustained by the defendant, in carrying on the furnace of Huntington & Day, subsequent to the 3d of June, 1850, amounting to $6,515.15, we think, ought to be stricken from his account.

2. Is the defendant entitled to the amount charged for his services'? Although he informed the plaintiff, when the original writings were drawn, that, as the trouble to which he might be subjected, could not then be known, and he preferred that $1,5.00, per annum, should be inserted as his salary, yet he should not expect to charge that amount, unless he was subjected to unforeseen losses and unexpected trouble ; and the committee have found, that his ^services from April 1, 1848, to the middle of May, 1849, while the plaintiff and Pierce were running the furnace under his charge, were not reasonably worth more than at the rate of $800 per annum, yet we think the stipulated salary, during that period, must be allowed. It was the duty of the plaintiff, if he meant to have the salary a conditional one, so to have expressed it in the contract. In the absence of fraud, on the part of the defendant, (and none is found,) the amount of salary, as prescribed in the contract, must furnish the rule.

But the salary, by the terms of the contract, was to continue, only during the time of operating the furnace : business was continued by him only to the 15th of April, 1850, when the furnace, with other real estate, was re-conveyed to the plaintiff. After that period, he was entitled only to a reasonable compensation, which the committee have found to be at the rate of $1,500 per annum.

But they have further found, that the trust might then have been closed, as contemplated by the parties, when the bond of the 15th of April was executed, had it not been for operating the furnace of Huntington & Day, and that, as we have already seen, was a matter between the defendant and them, and not falling within the legitimate business of the trust. The defendant’s salary, therefore, while attending to their business, must stand, as a matter between him and them, and ought not to be charged to the plaintiff.

3. The defendant had a. right to charge the amount paid by H. Chapin & Co., of which firm he was a member, for the purchase of the two claims against the plaintiff, and no more. It is perfectly well settled, that, if he alone had made the purchase, he could charge only the amount actually paid. His rights are not enlarged, by associating others with him in the purchase. It would open a door to numerous frauds, on the part of trustees, were the rule otherwise.

4. The plaintiff consented, that there might be a deduction of $42 from the price of the goods sold. It was, therefore, proper, that the balance only should be credited. It seems, that interest was not allowed upon the price of the goods, until some time after the sale. The reason why that was done, is not given. We are, therefore, not furnished with sufficient data to enable us to say, whether that postponement was rightfully made or not.

5. The plaintiff, in his contract with the defendant, agreed that, if the latter should be obliged 'to sell any of his own property, at a loss, to raise funds to pay the debts of the plaintiff, such loss should be reimbursed to him. The fair construction of that agreement is, that the loss contemplated by the parties, was the difference between the actual value of the property, and the price obtained, upon the sale of it.

But the defendant, under this agreement, claims a right to charge, not only the difference between the price obtained, and the value at the time of the sale, but at some future period, thereby talcing advantage of any rise, subsequent to the sale. He also claims a right to charge the difference between six per cent, interest, and the interest payable on the railroad bonds, and the dividends paid upon the stock, up to a subsequent period.

Such losses are not within the fair meaning of the contract. The amount of interest payable on the bonds, and of the dividends upon the stock, are circumstances to be considered, in determining their value. A bond, bearing seven per cent, interest, would be considered more valuable than one of the same amount, at five per cent., and would probably sell for more in market. The sums, thus charged, we think, should be expunged from the defendant’s account. But the sum paid for broker’s fees, on the sales, ought, in some form, to be allowed, as that amount may fairly be considered as lost, by the sale.

6. There is nothing shown, in the report of the committee, which justified the charge of the defendant, for his expenses in the suit. His right even to taxable costs, if a balance should ultimately be found in his favor, will depend upon the manner in which it shall be found, that the trust has been executed. It is in the discretion of the court, to allow or refuse them, and it ought to be exercised, as it shall appear that the conduct of the defendant has been faithful or unfaithful.

7. The plaintiff conveyed his property to the defendant, that it might be converted into money, and his debts thereby paid. It was originally supposed, that the trust could be closed, in from six to twelve months. But the defendant went on with the business, for a period of more than two years, at a high salary, until the plaintiff and his creditors became alarmed, and the closing of the trust was apparently as distant, as when it was created.

Under these circumstances, in April, 1850, the plaintiff’s bond of indemnity was substituted for the real estate mortgaged to the defendant, and in that bond it is expressly stated, that it was understood, that the defendant would convert the personal property in his possession, into money, as fast as it could conveniently be done, that it might be applied, in payment of the debts and liabilities, which it was then supposed by all parties, might be accomplished in from four to six months.

It was the duty of the defendant, under these circumstances, with all reasonable diligence, to convert the property into money, and pay off the debts. Instead of doing so, the committee find him, some six months afterward, disposing of $2,000 of the assets, in the purchase of railroad stock, which he subsequently keeps on hand, some nine months, receiving the dividends. This, in our opinion, was not a faithful execution of the trust, as contemplated by the parties, when the bond was given. He ought to have sold the iron, and not have used it, for the purpose of speculating in stocks. And, even if he could be justified in exchanging it for such property, it was his duty to have sold the stock, within a reasonable time ; and it is fair to presume, that it might have been done, as it is found, that it was taken at its marketable value. The loss, incurred under such circumstances, in our opinion, is not justly chargeable to the plaintiff.

8. The expenses in those suits against him, in which he was charged as being the trustee and debtor of Huntington & Day, stand upon the same ground as his claim for losses in running their furnace. At least, no sufficient reasons are shown for making a distinction. In taking a conveyance of their property, and operating their furnace, he must be considered as acting for them, and not as the agent of the plaintiff, and if, in so doing, he induced a belief, on the part of their creditors, that he was covering up their property, in consequence of which, he was sued, as being their trustee and debtor, the expenses thereby incurred, are a matter entirely between him and them, and do not concern the plaintiff.

9. The only remaining inquiry is, whether the defendant is justified in defending the suit in favor of Pierce, and charging the expenses to the plaintiff. And why should he defend, and attempt to set off a pretended debt, due from Pierce, to Pierce and the plaintiff, when they were in partnership ? Pierce had sold out to the plaintiff all his interest in that partnership, and, in consideration thereof, the plaintiff and defendant had given him their notes, to the amount of $5,000, and their bond to indemnify him against the partnership debts.

In that arrangement, the plaintiff had agreed that Pierce’s debt should be discharged. And why should it have been done otherwise ? He had purchased of him all his interest in the concern, and agreed to pay him $5,000, and assume all the debts. If there was a balance due from Pierce to the partnership, it would be natural for the parties to take that into consideration, in fixing the price that Pierce should receive for his interest in the concern.

It seems, that the business was so arranged, and the defendant was notified of the fact, before Pierce’s suit was commenced. The only ground upon which the defendant could be justified, in making such a defence, is, that it was done either for the benefit of the plaintiff, or for the protection of the defendant; neither of which is shown. The plaintiff, surely, could not wish to defeat a just debt, by setting off a claim, which he knew had been satisfied. And there is no evidence, that he ever even countenanced the defence.

And as to the defendant, he, at that time, held a bond of indemnity, signed by numerous individuals, which the committee have found, \yas a satisfactory one, and no claim has been made, that he was not amply secured by that bond. It is not, therefore, shown, that the defence was either sanctioned by the plaintiff, or was necessary for the protection of the defendant; and, in our opinion, the expenses were unnecessarily incurred, and ought not to be charged to the plaintiff.

Our advice, therefore, is, that the balance, found due the defendant, by the committee, be corrected in. the several particulars herein mentioned, and that a decree be made in conformity thereto.

In this-opinion, the other judges concurred.

Decree accordingly.


author: Storrs, J.

text:
    Pratt vs. Humphrey and another.
    In an action on a special promise to pay a debt, due from the .estate of a deceased person, whom the defendants represented, as administrators, the allegation of forbearance, at the request of the defendants, to present such debt against the estate, within the time limited by the court of probate, and the consequent loss of all claim upon said estate for such debt, is a sufficient averment of a consideration for such promise.
    A verbal promise to pay a debt, due from a deceased person, made to a creditor, in consideration of forbearing to proceed against the estate the promiser represents, is not necessarily within the clause of the statute of frauds, which relates to “ a special promise [by an executor or administrator] to answer damages, out of his own estate; ” but whether or not it is so, depends upon his having, or not having, assets of the deceased.
    The possession of assets is not, of itself, sufficient to charge him personally, on such promise, without a new consideration.
    In an action on such promise, the defendants pleaded in bar, that neither of the contracts, agreements and promises contained in the declaration, nor any note or memorandum of them, nor either of them, was ever made by the defendants, and signed by them or either of them, or by any person thereto lawfully authorized. Held, that such plea did not constitute a complete defence, without further alleging a want of assets.
    A plea in bar must state such facts and circumstances as amount to a complete defence to the action.
    Where the declaration, in such action, stated that the defendants were the administrators on the estate of the plaintiff’s debtor ; held, that such allegation might be treated as surplusage, and did not render it incumbent on the plaintiff also to allege that they had assets.
    The clause of the statute of frauds, which relates to a “ special promise [by one person] to answer for the debt, default or miscarriage of another,” was intended to apply only to promises, made to the person to whom another is answerable ; and therefore, a promise to A, to pay certain debts, which he owed his creditors, being a promise to him, and not to them, is not within this provision of the statute.
    This was an action of assumpsit, brought by Newell Pratt, against James Humphrey and Phebe Pratt, who were administrators on the estate of Andrew Pratt, late of Winchester, deceased. The declaration contained two counts, which were substantially alike. It alleged that, on or about the 8th day of May, 1849, the estate of Andrew Pratt, then late of Winchester, was indebted to the plaintiff, in the sum of twelve hundred dollars, to balance book accounts; and that the court of probate for the district of Winchester, in which said estate was in the progress of settlement, on said 8th day of May, limited and allowed six months to the creditors thereof, in which to present their claims to the administrators on said estate, for adjustment and allowance; that the defendants, to wit, Phebe Pratt, who was heir at law of said estate, and, as such, interested therein, and James Humphrey, were administrators thereon, by appointment of the court aforesaid ; and that the plaintiff was, at said time, indebted to sundry persons.
    After setting out the names of the creditors and the amounts due to each, the declaration proceeded to allege, that the plaintiff was about to present his said claims against said estate, to the administrators thereof, for allowance and payment, and that, on or about said 25th day of May, in consideration that the plaintiff, at the special instance and request of the defendants, would forbear to present his said claims against said estate, to said administrators, for allowance as aforesaid, and would make no claim on said estate for his debts against the same, the defendants then and there undertook and promised the plaintiff, that they would faithfully pay and discharge whatever debts might exist against said plaintiff, then outstanding and in favor of the plaintiff’s creditors, to the amount of two hundred dollars, and the defendants then and there promised the plaintiff faithfully to apply said amount of money to the liquidation of the plaintiff’s debts, and to furnish the said sum of money, to be applied to the payment of said debt, as aforesaid. A breach was then alleged, in the usual form.
    The defendants pleaded the general issue, and also pleaded in bar, that the pretended contracts, agreements and promises in the plaintiff ’s declaration mentioned, never were, nor was either of them, or any note or memorandum of said contracts, agreements or promises, or either of them, ever made in writing, and signed by the defendants, or either of them, or any other person by them thereto lawfully authorized. The plaintiff demurred to the second plea, which the court adjudged to be insufficient. The parties being at issue upon the first plea, the cause came on for trial, at Litchfield, August term, 1852, when the jury rendered a verdict in favor of the plaintiff. The defendant brought the case into this court, by a motion in error, assigning for error, that the superior court erred in adjudging said second plea of the defendants insufficient in the law.

      Sanford and Hitchcock, for the motion,’
    contended, that the promise of the defendants was void, under the statute of frauds. The suit is against the defendants, upon their promise to answer damage, out of their own estate, which promise was substantially to fulfill the contract of the deceased, or pay the damages to which he would have been subjected for its violation. At the time the promise was made, the plaintiff’s claim was against the estate only—his object was to enforce that, to get satisfaction for that debt. The defendant’s object was to procure the discharge of the estate from that debt. Upon that inducement, they promised.
    2. It was a promise to answer for the debt of another,— within the next clause of the statute. The plaintiff’s debt was not against the defendants, but against the estate. The promise of the defendants, to extinguish this debt, was a promise to extinguish not their own debt, but that of another. The plaintiff’s creditors might sue the defendants on this contract, as well as the plaintiff. Crocker v. Higgins, 7 Conn. R., 347. Can the validity of a contract, on which either of two parties may sue, as promisee, be good, if one of them sues, and void, if the other sues ?
    3. No sufficient consideration is laid, in either count. Administrators are liable only when they have assets. It is not averred, that these administrators had any. The law presumes, that the pleader states his case as strong, as his proof will warrant, and will not presume, that administrators have assets, when the pleader does not charge it. 5 Term R., 8. By forbearing to exhibit a claim to administrators who have no assets, no possible loss or injury can accrue to the promisee, or benefit to the promisors, as individuals. Forbearance, when there is no cause of action, is no consideration for a promise. Sw. Dig. 196-198. 1 Stra., 94. North v. Forrest, 15 Conn. R., 400.

      Woodruff, Hall and Case, against the motion,
    after remarking that the questions arise upon the sufficiency of the defendant’s second plea, that the promise was not in writing, contended, 1. That, as to the promise to pay the debt of another, the object of the statute is only to reach every case of mere suretyship. 1 Cowen’s Treatise, 317. Its language is, “ no suit shall be brought, &c., whereby to charge the defendant, upon any special promise to answer for the debt, &c,, of another person.” Its meaning is, to answer for the debt of a third person. This suit is brought on a promise to a debtor, to pay his debt to his creditor, and not on a promise to a creditor, to pay to him the debt of another.
    An agreement, by which one promises a debtor to pay his debt to his creditor, is not within the statute. Colt v. Root, 17 Mass. R., 229, 236. Chit. on Cont., p. 507, n. 1. Barber v. Bucklin, 2 Denio, 45, 60. Even if the agreement be within its terms, if the promise arises out of some new and original consideration of benefit or harm, it is not within the statute, though by parol. Meech v. Smith, 7 Wend., 318.
    The law is the same, even if the original debt is not discharged, if there be a new and original consideration. Jennings v. Webster, 7 Cow., 256. Farley v. Cleveland, 4 Cow., 432. 9 Cow., 639.
    2. As to a promise by an administrator, to answe'.r damages out-of his own estate, the language is, “no suit shall be brought, &c., to charge any executor, &c., upon aniy special promise to answer damages out of his own estate," &c.

      The meaning of this clause is, that a promise to discharge demands against the deceased, out of the executor’s estate, must be in writing. It relates to a case where there is a connection between his official character, and the damages he assumes. In the cases cited, 1 Sw. Dig., 247, the promise was to pay the debts of the deceased. But in this case, the promise was not to pay the debt of the deceased, but to pay debts due from the promisee, having no connection with the estate.
    3. As to the error assigned, that there is no averment that Andrew Pratt left no estate, and that the plaintiffs do not set forth any other consideration, &c. The suit is not brought against the defendants, as administrators. Indeed, the complaint of the defendants is, that we seek to charge them, in their private capacity ; that we demand damages out of their own-estates. 2 U. S. Dig., 457.
   Storrs, J.

The questions presented in this case are, 1,

whether a sufficient consideration is alleged for the promise stated in the declaration; and, 2, whether such promise is within either of the first two branches of the statute of frauds, and should therefore have been in writing.

1. A good consideration is necessary to the validity of this promise, whether it is within the statute of frauds, or not. Mitchinson v. Hewson, 7 T. R., 344, n. Allen v. Bennett, 1 Saund., 211, n. 2. Burrell v. Russell, 3 Taunt., 173. Claney v. Pigott, 2 Ad. & El., 473.

It being stated in the declaration, that the claim of the plaintiff against the estate represented by the defendants, was for a debt due to the former, a presentment of it by him, to the defendants, within the time limited for that purpose, was necessary in order to recover it; and an omission so to present it, would operate as a discharge or relinquishment of it. The time limited for such presentment expired, long before the commencement of this suit. The declaration further alleges, that the plaintiff, at the request of the defendants, has never presented said claim to the latter. We can not doubt, that such forbearance to present it, constituted a sufficient consideration for the promise of the defendants therein stated. It comes within the well settled and familiar principle, that the discharge or relinquishment of a well founded legal claim, or forbearance for a certain or reasonable time, or altogether, to institute or prosecute legal proceedings for its recovery, is a sufficient consideration for a promise to the creditor to pay the debt, or to do any other act. 1 Roll. Ab., 24, pi. 33. 2 Saund., 136. Chit, on Cont., (6 Am. ed.,) 34. The defendants, however, claim, that such discharge or relinquishment or forbearance is not a sufficient consideration for such a promise, by an executor or administrator, personally, unless he has assets of the estate represented by him, in his hands ; and that, as he is not stated to have had such assets, the promise here is not binding. It js clear from the authorities, that although the mere possession of assets by an executor or administrator, would not be a good consideration to charge him personally on such promise, a new consideration, such as forbearance to proceed against the estate he represents, is sufficient for that purpose, although he has no assets. Rann v. Hughes, 7 T. R., 346, n. Parish v. Wilson, Peake’s R., 73. Forth v. Stanton, 1 Saund., 201, n. 1. Barber v. Fox, 2 Saund., 136. Philpol v. Briant, 4 Bing., 717. Goring v. Goring, Yelv., 11, (Am. ed., by Metcalf,) n. 2. Treford v. Holmes, Hut., 108. Palmer's Case, id., 52. Porter v. Bille, 1 Freem., 125. 1 Co. Rep., 94. 1 Sw. Dig., 247.

2. If the defendants are not to be deemed to have assets of the estate which they represent, it would be a very embarrassing question, whether this promise is within, the first branch of the statute of frauds, which relates to a “ special promise [by an executor or administrator] to answer damages out of his own estate.” In that case, it would be difficult to resist the claim, that it is a promise to answer damages out of their own estate. But if they are to be considered as having such assets, they would have a right to charge to the estate they represent, the amount of the damages recovered of them in this suit; and it would seem, therefore, that those damages would not come out of their own estate. They would not ultimately, at least, although they might, in the first instance. For, although the judgment would be against them personally, they would be indemnified against it, by the funds of the estate in their hands. Hence the damages would substantially be answered out of the estate of their intestate ; and the promise, in such case, would appear to be one which was not contemplated by that branch of the statute. The case of Stebbins v. Smith, 4 Pick., 97, is directly in support of this construction of it. There it was held, that a promise to pay a debt of a testator, made to a creditor, by an executor, who had given a bond to the judge of probate to pay the testator’s debts and legacies, was not within the branch of the statute of frauds of Massachusetts, relating to special promises by executors and administrators, to answer damages out of their own estate, (which is precisely like ours, on which the present question arises,) on the ground, that .the bond was an admission of assets. The court say : “ The suggestion, that the promise is void, by the statute of frauds, is clearly unfounded. It is not a promise by an executor, ‘ to answer damages out of his own estate,’ for the bond given to the judge of probate, is an admission of sufficient assets, which the defendant is estopped to deny.” The principle determined in that case, is, that where an executor or administrator has assets, a promise by him, to pay a debt due by the person he represents, is not within that branch of the statute. We are induced, although not without some hesitation, to adopt the same construction. Whether he would be liable on such promise, beyond the amount of such assets, it is not necessary to decide : the question before us is as to the right, and not the extent, of the recovery.

Having come to the conclusion, that a verbal promise to pay a debt due by a deceased person, made to his creditor, by his administrator, is not necessarily within this branch of the statute of frauds, but that whether it is so or not, depends on whether the administrator has assets, we think that the defendants, in their plea, should have alleged that they had none, and that, for the omission to state that fact, the plea is insufficient. A plea in bar 'must state such facts and circumstances, as amount to* a complete defence to the action. On the principle which we have adopted, the fact stated in the plea in this case, that neither of the promises mentioned in the declaration, or any note or memorandum thereof, was made in writing, &c., did not necessarily, or prima facie, bring the promises within the statute. It would not, therefore, constitute a complete defence, unless the further fact was also stated, that there was a want of assets. That fact should have been stated, in order to show, that a written promise or memorandum was necessary. The only answer given to this objection to the plea, is, that the declaration states, that the defendants were administrators on the estate of the plaintiff’s debtor, and that it was, therefore, incumbent on the' plaintiff to state that they had assets, in order to make out a cause of action against them. This, however, was not only not required by the established rules and order of pleading, but would be contrary to them. The allegation of such administratorship was unnecessary, and indeed irregular. Without it, the declaration was perfect, and stated a cause of action which was neither strengthened nor weakened by it; it was not necessary to be proved at the trial, and a variance between that allegation and the proof would have been immaterial; it was, therefore, surplusage, and might be rejected. It being surplusage, and no part of the statement of the cause of action, it is obvious that it did not impose on the plaintiff the necessity of superadding to it the statement of any other fact. If, indeed, the allegation showed, that the plaintiff had no cause of action, it would, although surplusage, have vitiated the declaration : but such was not the case. Com. Dig. Pleader, C. 28, c. 29. Arch. PL, 98. And yet the statement of that fact in the declaration, although unnecessary, perhaps, superseded the necessity of stating it in the plea, which would have been otherwise necessary. It seems to have been treated, by the defendant, as having that effect, and no question has been made on that point.

3. We are clearly of opinion, that this promise is not within the second branch of the statute of frauds, which relates to a “ special promise [by one person] to answer for the debt, default or miscarriage of another.” The promise here was made, not to the creditors of the plaintiff, but to himself, to pay debts which he owed to such creditors. Whether the terms of the statute are, or are not, sufficient to embrace such a promise, the object and occasion of it show, plainly, that it was intended to apply only to promises made to the person to whom another is answerable, and that such, therefore, is its true construction. The authorities also, on this point, are to this effect. Eastwood v. Kenyon, 11 Ad. & El., 438, (39 E. C. L. R., 137.) Barber v. Bucklin, 2 Den. R., 45.

There is, therefore, no error in the judgment complained of.

In this opinion the other judges concurred, except Church, C. J., who tried the cause in the court below and was disqualified.

Judgment affirmed.