58 A. 458 | Conn. | 1904
This action was brought against the defendant as an administrator of the estate of a deceased person. He is so described in the caption of the judgment-file, but the judgment rendered was "that the plaintiff recover of the defendant one hundred and seventy-nine dollars and fifty-nine cents ($179.59) damages, and her costs, taxed at 66 dollars and 95 cents."
The cause of action stated is that, as administrator, the defendant sold and conveyed to the plaintiff a building lot on Sherman Avenue in New Haven, belonging to the estate, at a price determined by the number of feet of its frontage on the street, and induced her to buy, by means of a representation, upon which she relied, that the lot was of equal width throughout, whereas it was in fact considerably narrower on the rear.
An administrator cannot subject the estate in his charge to a judgment for damages suffered through any false representations which he may have made, while acting in its behalf. The remedy is against him personally. See Hallock v.Smith,
General Statutes, § 739, authorizes suits against an administrator for moneys paid or services rendered for the estate, and provides that if the plaintiff's claim shall be found a just *65
one, and such as equitably ought to be paid out of the estate, judgment to that effect may be rendered. The plaintiff is not suing for money paid; but if she were, such an action on the statute could not support a judgment against an administrator in his individual capacity. McDonald v. Ward,
It follows that the motion in arrest of judgment should have been granted.
The bill of exceptions filed by the plaintiff, under General Statutes, § 804, calls for consideration only in case a new trial is advised. As the record now stands, a new trial will be of no avail. Should an amendment be asked and allowed, to make the action one against the defendant individually, he would then become a party in a new capacity, in respect to which he was not a party to the former trial. Under these circumstances we think it inexpedient to consider any question except that presented by the motion in arrest.
There is error.
In this opinion the other judges concurred.