5 Md. 327 | Md. | 1853
Lead Opinion
delivered the opinion of this court.
This is an action of indebitatus assumpsit, and was instituted by the appellee, who was the plaintiff below, to recover a sum of money from the appellant, as executor of James, which he claimed to have been in the hands of James at the time of his death, and as belonging to him.
The evidence in the cause shows, that the appellee executed two deeds of trust to the testator of the appellant, one in 1845 and the other in 1846. The purpose of these deeds was to secure the payments of the debts due by the appellee, which is fully expressed in them, and then provide, if there should be any balance of the proceeds of sales remaining, that it should "be paid over to the said Richard Howard,” the plaintiff.
The appellee contends there was a balance so remaining, and that James promised to pay it.
On the part of the appellant the claim is resisted, on the ground that there was no settlement of the trust and no adjustment between the parties of any balance, and no promise made to pay any; and therefore, whatever may be the true state of the trust funds, a court of law has no jurisdiction of the matter; in other words, if there be any claim it is of an equitable, and not of a legal, character, and if enforced can only be so by a court of equity.
There can be no doubt in this State as to the principles of law which must govern the decision of this case. It is unquestionably true, that to enable the plaintiff to recover in this action, he must show that there had been an adjustment of the accounts between the parties and a promise to pay the amount ascertained to be due. Unless he can do this he has no standing in a court of law. On the other hand, if he can make out these facts, there is no difficulty in regard to the jurisdiction of a court of law. So long as the amount of indebtedness was undecided and an absence of a promise to pay,
This being the undisputed law applicable to the case, the matter for our determination is one purely of fact, and therefore to be settled by the evidence in the cause.
It appears from the evidence of Mr. Luckett, that at the instance of Mr. James he prepared from vouchers and papers furnished by Mr. James, a “statement of an account between the creditors of Richard Howard and Sir Pratby James, Esq., trustee.” The witness also proved, that the whole of the account was supervised by Mr. James, and was, with but few exceptions, in the handwriting of witness. The account, as prepared by Mr. Luckett, concludes with these words: “Leaving as balance, payable by trustee to cestui que trust, Richard Howard, $256.31.” The words which follow these, and proved by another witness to be in the handwriting of Mr. James, are, “to two judgments paid Thos. E. D. Poole, not in the above, $27.43 — balance payable as above, $228.88 — error in calculation on Rockwell’s judgment, $3.68 — $225.20.”
In addition to this evidence, the plaintiff, by the witness, Wilson, proved, (hat in the year 1849, a short time before the death of Mr. James, and while witness was in his employ, the former paid a visit to Mr. Howard, and on his return home witness asked him how he and Mr. Howard came on, and that James replied, “better than you or I expected; that he had had a settlement of the trust business with said Howard, and had given up to Howard all the papers in relation to the trust business; that there was a balance of between two and three hundred dollars due Howard, and he, Howard, would not owe a dollar in the world, — that James meant to pay him, Howard, and when he did, he would advise him to go and live in his house,” &c. It was also proved by the witness, Clary, that in a conversation had with James in regard to a claim which witness had against Howard, the former said, “never mind, we can settle that at another time; I have had a settlement with Mr. Howard a few weeks ago, and 1 gave
On this state of facts the appellant offered to the court below two prayers, which we think were properly rejected. To our apprehension it seems difficult to understand what stronger proof could be furnished to show an adjustment between the paries and a promise to pay the amount ascertained by it. The account was made out at the instance of Mr. James, and by him added to, conciuding with the statement, that the amount was payable to the appellee. It is but a just inference from all the testimony, that this account was delived by Mr. James to Mr. Howard, and also, that he made a promise to pay. Although the law requires there should be an express promise to pay, yet this it is not incumbent on the plaintiff to show by direct testimony; it may be established by facts and circumstances. So far from direct evidence being required, the case of Riarl vs. Wilhelm, 3 Gill, 364, so confidently relied upon by the counsel for the appellant, expressly says, that “as in other cases, so in this, what is sufficient proof is a question for the juiy, and the fact may be established by circumstances, and just and fair inferences from facts, as well as by positive testimony.” In so far as the jurisdiction of the court is concerned, that case is identical in principle with the one now before us; and we think the facts in this case are such as irresistibly to convince the minds of any jury both of the adjustment and the promise to pay, and accordingly affirm the judgment.
Judgment affirmed.
Concurrence Opinion
concurred in the opinion of the court, with the exception, that he thought an express promise unnecessary; holding that an implied promise was all sufficient, and for this opinion he relied upon the authorities collected in 3 Maryland Reports, 383.
