■ Irving, J.,
delivered the opinion of the Court.
This is an action of assumpsit brought by the appellee, against the appellant, in the Baltimore City Court, on the 4th of March, 1880. The declaration in a single count, claims for money payable to plaintiff for goods bargained and sold by the plaintiff to the defendant's intestate, in his life-time, and delivered since his death to George Coburn aforesaid, and John Coburn, administrators of said Thomas Coburn, the said John Coburn having since said delivery been relieved and discharged by the Orphans’ Court of Baltimore City, from his office of co-administrator.
' The following bill of particulars of the plaintiff’s claim was filed:
Estate of Thomas Coburn, dec’d, (George Coburn, Adm’r,)
Dr. To John Harris.
To 415 perches of stone, furnished for construction of wall at Greenmount Cemetery, from the date of the death of Thomas Coburn in Sept., 1811, to Dec’r 11th, 1811, at $2.00 per perch, $880.00 Interest from Dec’r 11, 1811.
The case was defended on plea of non-assumpsit, and that suit was not brought within nine months after the rejection of the claim by administrator, under sec. 108, of Art. 93, of the Code of Public General Laws.
It appears that. Thomas Coburn was in his life-time under a contract with Greenmount Cemetery Company to build. a certain wall; and that he contracted with the plaintiff to furnish him all the stone he needed for the construction of the wall, at two dollars per perch; and that Thomas Coburn having died without completing the wall, the administrators after his death proceeded to finish the work. This suit is to recover for the stone alleged to have been delivered the administrators, after the death of their intestate, for the completion of the wall.
*101A judgment has already been obtained in another suit against this appellant for the stone delivered the intestate in his life-time. The bill of particulars in that suit included tire stone which is the subject -of this action, but under the pleadings in that case, recovery for the stone furnished the administrators after the death of the intestate, was denied; and this suit has been instituted for it. In the other suit the whole claim was resisted by plea of never promised as alleged, and other pleas not necessary to be referred to for the purposes of this case. The record of that case was offered in evidence in this case, and evidence tending to prove the indebtedness now sued for. ít also was in evidence that this claim with others, duly authenticated, and passed by the Orphans’ Court, was exhibited, on or about the 28th of March, 1878, to the appellant lor payment, by the attorney of the appellee, and was objected to, and was not paid; that the suit already mentioned was then instituted, and that claim or right, to recover the amount now claimed in that suit under its pleadings, was abandoned in Court, on the 12th day of June, 1879. In the former suit the pleas of nonassumpsit were interposed as early as September 3rd, 1878. The pleadings were subsequently amended, and issue was joined on May 30th, 1879. Upon these facts the appellant framed prayers in the present case, invoking the protection of the 108th sec. of Art. 93, of the Code of Public General Laws, because the suit had not been bi-ought within nine months after the exhibition to, and rejection of the claim by him. The Court adopting the theory that sec. 108, of Art. 93, did apply, and barred the suit, if the jury should find the facts enumerated, granted the third and fourth prayers of the appellant, but refused the sixth prayer. This refusal is one of the grounds of error relied on by the appellant. In addition to the facts set out in the fourth prayer, the sixth prayer also contained the following: “and that subsequently a *102suit was brought therefor, by the plaintiff in the Baltimore City Court on the third day of September, 1818, against George Coburn and John Coburn, the joint administrators of said Thomas Coburn, and the said defendants in said suit pleaded, that they never were indebted as alleged; and that they never promised as alleged, and if the jury shall further find, that at the trial of said case, the plaintiff amended the pleadings, and struck out John Coburn as one of the defendants, and prosecuted the case against George Coburn alone; and that in said case the plaintiff abandoned the item now sued for in this case, then the plaintiff is not entitled to recover, and the verdict of the jury must be for the defendant, even although the jury may further find, that after the death of Thomas Coburn, the plaintiff delivered to John Coburn as one of the administrators of said Thomas Coburn, the stone mentioned in the bill of particulars in this case.”
The manifest object of this prayer was to get the Court’s instruction as to the effect of the former suit; as a demand of payment on the part of the plaintiff for his claim; and of the defendant’s plea of non-assumpsit to the claim made in the declaration, (which included the item now sued for,) that is to say, whether such pleading amounted to a rejection of the claim by the defendant, so as to entitle him to the protection of sec. 108 of Art. 93, as an entire bar, because this suit was not brought within nine months from the defence so. made by him to that suit. A more formal demand than by suit could not be made, and a rejection of and refusal to pay could not be more solemnly and formally made than was made by pleas, such as were interposed, denying the plaintiff’s claim in tato; and if the statute was applicable to such a claim as this is, we think that this prayer of the defendant ought to have been granted. In our opinion, however, the claim sued on in this case is not within the meaning or contem*103plation of sec. 108 of Art. 93 of the Code. That section ■refers to such claims against the decedent as imperatively require both authentication and passage by the Orphans’ Court before the administrator would be protected in paying. Such claims as are referred to in secs. 92 and 93 of the same Article are intended by sec. 108, to be barred if the suit is not brought within nine months after exhibition to the administrator and rejection by him. In 53 Md., 367, on an appeal between these same parties, in the suit which resulted in judgment for the plaintiff for that portion of the stone which was delivered in the intestate’s life-time, this Court said, with respect to claims upon contracts with the decedent, that to entitle the administrator to plead sec. 108 of Art. 93, in bar, such claim when exhibited to or demanded of the administrator must have been legally authenticated, and also be passed by the Orphans’ Court, so that he would he justified in paying it if he had chosen, instead of repudiating and rejecting it. This claim differs, we think, essentially, from the one there passed upon; for although it resulted from a contract with the intestate in his life-time, it was completed with the administrator ; and the Court ruled in the former case, on the trial below, that a count charging the contract with the intestate in his life-time would not admit proof, and justify recovery for such of the stone as was delivered alter his death to his administrator. The claim now sued for is not within the meaning of the section nor •of that decision ; nor is it within the contemplation of the decision of Zollickoffer’s (Jase, so far as that case refers to this sec. 108. It is without doubt a claim against the estate of the decedent; but it was not a wholly executed contract, so as to be within the contemplation of the law we are discussing. The decedent’s contract was supposed to make it the duty of the administrator to complete the wall. The appellee’s contract with decedent to furnish the stone, was also supposed to bind the administrator to *104take from him the stone necessary to complete the work,, and the stone was delivered to the administrator accordingly. The law provided for proof of claims against the , deceased, and passage hy the Orphans’ Court to justify the administrator in paying, because the administrator was supposed to he ignorant of the character of such claims; hut where the claim arises on direct contract with the administrator; or, as this claim did, from dealing with the administrator, and delivery of the material to him, and he knows all about it; because he incurred the obligation ; or, as in this case, received the stone, the creditor need not get his claim proved and passed, before the administrator would he justified in paying -it. In thus-dealing with the creditor on behalf of the estate the administrator makes himself liable as such administrator, and he gets his allowance of the claim thus paid, according as the Orphans’ Court may he satisfied he has acted fairly in the matter. But as a matter of practice, the administrator ought to fortify himself hy procuring the creditor’s probate-. Whether such claim as this must he presented within any particular time or he barred, is not now before-us. The only question is, can the administrator plead the I08th sec. of Art. 93, which this Court said in Zollickoffer’s Case, (44 Md., 359,) was not intended as hare protection to the executor, or exoneration of him, hut operated to-forever bar the creditor who was in the default designated in it ?
We are clearly of opinion that this- claim is not within the reason of the law, and that the section invoked has no application, and could not he pleaded in bar to such claim. Entertaining this view, it follows that the appellant obtained from the Court in the instructions granted him even more than he was entitled to. The pleadings present no question of plene administravit or res adjudicaba. In fact, the appellant’s counsel stated he had not made the point below, that the former suit concluded this. *105one, and did not claim that it could properly be pressed in-this Court. Tlie judgment must be affirmed.
(Decided 3rd March, 1882.)
Affirmed with. costs.