Bailey v. Bussing

41 Conn. 73 | Conn. | 1874

Carpenter, J.

The facts presented by this record do not differ materially from the facts as they appeared in the same case when it was before us on a former occasion. 37 Conn., 349. The defendant supposes however that the case, as it now stands, should be decided in his favor upon the strength of Gregory v. Benedict, 39 Conn., 22, inasmuch as the court below has found that the defendant gave no consent that the claim in suit should not be brought forward and acted on by the commissioners. But we think the court must have intended by this merely to say that there was no express agreement to that effect; for it is found, in the same connection, that the defendant was aware of the existence of the claim, and did-not request that it should be brought forward and acted on. The case stands thus : The defendant had a small claim against the, estate, which he presented to the commissioners—thereby asking them to allow it in full—knowing at the same time that the estate had a claim for a much larger amount against him. He did not appear before the Commissioners when his claim was acted on, and made no request that the counter claim should be acted on, and, if valid, a set-off made, but allowed the commissioners and the executors to take such action as to them might seem expedient. The executors did not bring forward the claim in suit, and the commissioners did not in - fact act upon it, but allowed the defendant’s claim in full, which was paid accordingly. These , facts are sufficient to satisfy us that there was an implied consent by the defendant to the action of the commissioners, and that he cannot avail himself of that action as a defense to this suit.

We advise the Superior Court to render judgment for the plaintiffs.

In this opinion the other judges concurred.