71 Me. 99 | Me. | 1880
By E. S., c. 87, § 11, as amended by c. 85, of the acts of 1872, it is provided that — "No action against an executor or administrator . . . on a claim against the estate shall be maintained, . . . unless such claim is first presented in writing, and payment demanded at least thirty days before the action is commenced.”
"The grounds for a plea in abatement are any matters of fact tending to impeach the correctness of the writ or declaration; i. e., to show that they are improperly framed, without, at the same time, tending to deny the right of action itself.” Stephen on Pleading, 47. "A plea in bar is distinguished from all pleas of the diliatory class, as impugning the right of action altogether, instead of merely tending to divert the proceedings to another jurisdiction, or suspend them, or abate the particular writ or declaration. It is, in short, a substantial and conclusive answer to the action;” Ibid. 51.
It is evident, that a plea proper to raise the objection under consideration, will come under the latter definition. The statute makes the presentment in writing and demand indispensable prerequisites to the maintenance of the action. They are elements in the cause of action to be alleged in the declaration and proved by the plaintiff, as much as any other fact necessary to a recovery. Hence, an omission in this respect, is as "substantial and conclusive an answer to the action, as a failure to p_rove any other fact involved in the case. A nearly or quite universal test of the necessity of resorting to a plea in abatement, is, that it presupposes and must give to the plaintiff a better writ. In this case no better writ can be given, for the simple reason that if the objection prevails it is fatal to the action.
This statute is of a comparatively recent date, and so far as we are aware, has not received a judicial construction; but others of a similar import have often been before the court, and have uniformly been construed in accordance with the views here expressed. In Hathorn v. Calef, 53 Maine, 471, the notice required to be given stockholders in a corporation of a want of attachable corporate property in order to hold them for the debts of the corporation, was recognized as a substantive part of the action against such stockholder-, necessary to be alleged in the declaration and proved by the plaintiff under a plea in bar. In
In the case at bar there is no allegation of presentment and demand in the declaration, but as no demurrer was filed, that defect is waived. There is, however, with the general issue, a brief statement filed, which is sufficient to require proof of a compliance on the part of the plaintiff, with the statute, or a waiver of such compliance by the defendant, and thus distinctly raises the principal question involved in this case, and that is, Whether the evidence reported is sufficient to authorize a jury to find the required presentment and demand or a waiver.
It is clear that a fair construction of the statute requires that the written claim shall be presented to, and the demand made of, the executor or administrator. True, this is not in terms required, but no other person is referred to, and the object of the demand is to give such information and such time for investigation, as shall enable intelligent action; and certainly we cannot expect action except from him upon whom alone rests the duty, as well as the responsibility. The sendee then to be made upon an individual, must necessarily be a personal service, for the statute authorizes no other. Sedgwick on the Construction of Statutory Law, 378.
It is undoubtedly true as a general rule, that what a person may do by himself, he may do by another, as his agent. But this rule is applicable only when there is something to he done and not merely to suffer. The executor or administrator in this matter is merely a recipient, and not the acting party. The demand is hut the initiatory process of the action. Until that is done there is no occasion for an agent; no act for him to do hut
Nor is the rule of law by which the principal is bound by a notice to an agent, applicable. That applies only when the notice is of some feet that will legally modify or control some act, which the agent had been authorized to do, as in Astor v. Wells, cited in the argument; or as in the illustration taken from Story’s Agency, " When it arises from, or is at the time connected with, the subject matter of his agency,” or is to be given to a corporation which can act only by agents.
In this case there was no act which an agent was performing or had performed to be modified by the notice and demand, for such was the beginning of, or foundation for a subsequent process, intended to induce future, and not to modify or control present action, and not that of a corporation, but of an individual, personally and officially responsible for his own doings. In Freeman v. Freeman, supra, the demand of dower, though made upon the premises, was held insufficient, because is did not appear affirmatively to have been made upon the proper person. In Luce v. Stubbs, supra, the demand, though left at the dwelling of the respondent, was held sufficient only when it appeared that it had been actually received by the person for whom it was intended; see also, Burbank v. Day, 12 Met. 557.
But while there is no authority for making the presentment to, and demand upon, an agent, it is clear, that, as in the matter of dower, the claimant may make the demand by an agent; and in this case, when the written claim was presented to the alleged attorney under a promise on his part to deliver it to the-defendant, so far as this matter is involved, he became the agent of the plaintiff rather than that of the defendant. Hence, in this connec
Independent of these considerations, another question may arise in this case for the jury, — that of estoppel or waiver. If a person having a demand against an estate, and proposing to lay the foundation of an action by a compliance with the provisions of the statute, were made reasonably to understand, either by the acts, or words, or both, of an executor or administrator, that the written claim might be left with a person, or at a place, designated, and acting upon such understanding he should so leave it, well settled principles of law, as well as of justice, would estop a denial of duo service. The statute, though of a public nature, has for its object the protection of the rights of estates and individuals. Its provisions may therefore be waived by those for whose benefit it was passed, and who represent the interests involved. Sedgwick’s Cons, of Statutory Law, 87; Hingham & Quincy, B. & T. Cor. v. County of Norfolk, 6 Allen, 356. Such waiver will be conclusively inferred uidess the question is raised by the proper plea. Ayer v. Spring, 10 Mass. 83. It may be done before as well as after the commencement of the action, and whether it has been done, or whether the defendant is estopped to deny the proper demand raises a question for the jury which they may settle by any competent and sufficient evidence.
The result is that the pleadings in this case raise two questions of fact for the jury, upon which the report discloses some evidence, competent lor their consideration, viz : 'Whether the
Action to stand for trial.