35 Ind. App. 478 | Ind. Ct. App. | 1902
The proceedings out of which this appeal arises were had in the lower court upon exceptions filed by the appellant James T. Polk to the amended final report of Grafton Johnson, the-appellee, as receiver of the property and estate of said Polk; said Johnson having been theretofore appointed such receiver by the Johnson Circuit Court in a cause therein pending. The appellee, in such report, claimed an allowance of $20,000 for his services, and was allowed, upon hearing, $9,500 therefor.
Subdivision one of exception two was as follows: “It is shown to the court: That the property and business of the estate of said receivership have .at all times been located at the town of Greenwood, whose population was, when the receiver herein was appointed, about 1,000, and was to a considerable degree supported by said business; that said Johnson and his family, when this proceeding was' instituted, owned vast properties in and about said town, consisting of business houses and rental dwellings and farming lands, the rental value and rentals of which depended in a great measure upon the continued operation of said business; said business employing tiro principal part of. the labor of said community; that, in addition to said interests of said Johnson in the prosecution of Polk’s business, he was conducting a banking business which was patronized by said Polk, and said Johnson at said time was a creditor of said Polk in a large sum, the success of which credit, in a measure, depended upon the value of the jfiant and business of said Polk, and said value depended almost wholly upon the continued prosecution of said business. In view of'the foregoing facts, said Johnson, well knowing that the court, or the judge thereof, would probably not appoint a receiver for said property and business who was objectionable to said
In Steel v. Holladay (1890), 19 Ore. 517, 25 Pac. 77, the receiver at the time of his appointment represented to the court that he would not claim compensation, he being interested in the property. Other interested parties seem to have consented to the appointment in reliance upon this promise. Compensation was refused to him, although it was shown that the work had proved much greater than was anticipated when the appointment was made. It was said by the court, that the representation was the foundation upon which the appointment rested. In the case at bar it is not alleged that the undertaking to render gratuitous service by appellee was brought to the attention of the court at the time the appointment was made. It is very well established that an executor, accepting his trust under a will wherein
The analogy between the distribution of an insolvent estate by a receiver and the distribution of a decedent’s estate by an administrator, so far as the duties of the receiver and administrator are concerned, as well as their attitude toward the court appointing them, is very close, while in a general sense the law applicable to trustees has no exception in the case of a receiver. 3 Pomeroy, Eq. Jurisp. (2d ed.), §1336. In determining whether there was sufficient consideration for the promise of an administrator to administer without charge, the fact that the person to whom the promise was made had a prior right to letters has been given prominence in a number of cases, but in others the contract is held binding, although the person with whom it was made had no such prior right. Very strong language is used by the courts in some of the cases cited.
In M'Caw v. Blewit, supra, it was said: “On the question of commissions, the court are unanimously of opinion that the executor is not entitled to thorn. IIo voluntarily undertook the duty under Hie express stipulation that he would not charge them; and ho can not now be permitted to violate that contract. That which was expressly declared to have been intended as a gratuity shall not now be converted into a demand.” In Bassett v. Miller, supra, it was said: “While such contracts should not be encouraged, it is far better, in view of public policy and sound morality, that they should be sustained, than that conduct should bo tolerated, by this court, by which solemn engagements may be repudiated, and fraud and deception perpetrated with impunity.” The agreement to act without compensation operates upon the party making it, and amounts to a waiver by bim of that which he has a right to forego. Being made upon a valuable consideration, such as is satisfactory to him at the time, it follows that he can not thereafter be permitted to change his mind. The right to compensation may be relinquished or waived, and, where there has been such relinquishment or waiver, no allowance can afterwards be made.
Judgment reversed, and cause remanded, with instructions to overrule the motion to strike out subdivision one of exception two, and for further not inconsistent proceedings.