50 Ky. 344 | Ky. Ct. App. | 1850
delivered the opinion of tile Cou.it
On the 2d of June, 1825, Ruggles Whiting having previously conveyed to D. R. Poignard in trust a tract of land in Indiana, and several claims for money, among which was a claim on John Peck, secured by mortgage on a lot in Boston, Mass., called the Mill Pond lot, drew upon him an order- which Poignard accepted, and which is in substance as follows:
“To D.R. Poignard. This is made an order on jmu to account for the proceeds of 214 acres of land in Indiana, also for the proceeds of a certain agreement of Wilkins and Holderman to pay me $1000, after deducting your claim for expenses incurred in my business, and any claim you may have upon my brother Charles Whiting.
“To Daniel R. Southard, of Louisville. You Will also account to said Southard for any amount you may recover for me on a lot of land in Boston, situated on the Mill Pond, after deducting first your claim for expenses incurred, any claim that Doctor Cushing may make by virtue of your letter of February,.. 1825, to Daniel Hastings of Boston, by me directed to be written, &c., any claim you have against me or my brother Charles Whiting, of St. Louis, for advances made or liabilities incurred for and on account of his operations in and about and relating to his property in St. Louis.”
In 1827, administration upon the estate of Ruggles Whiting wbo died in that or the preceding year, was granted to James Richardson, who in that character and
Butin September, 1836, before the first answer and cross bill of Cushing’s administrator had been filed, a decree was rendered by consent of Whiting’s representatives, and the two Southard’s and Poignard, by which in pursuance of a previous agreement between these parties, Whiting’s representatives and the Southard’s, in consideration of Poignard’s claims upon Whiting,, agreed to release to him the Indiana land, and Poignard agreed to convey to James Guthrie, with special war
The litigation upon the original bill, and between Whiting’s representatives and Poignard, and the Southard’s having been thus terminated, the remaining questions in the case grow out of the contest between Cushing’s adm’r., and D. R. Southard, respecting the distribution of the proceeds of the Mill Pond lot. And as the order on which Southard’s claim is founded clearly gives the precedence to the claim of Dr. Cushing the only real question upon the merits of the case, is whether the claim presented by his administrator is a just and subsisting demand, and is the claim referred to in the order.
In the original answer of Cushing’s administrator he states that his intestate held at his death three notes on Ruggles Whiting, all dated the 3d of December, 1822, and payable to É. D. Cushing on demand with interest, viz: one for $1000, one for $877 25, and one for $105,
The first amended cross bill of Cushing’s adm’r., was filed in 1841, in which he makes D. R. Southard a defendant, and among other things, says: “the claim of Dr. Cushing’s estate, made in virtue of the letter to
Poignard answered the cross bill of Cushing’s administrator, in February, 1850, but his answer with its exhibit hereafter to be noticed, has been mislaid or abstracted.
D. R. Southard answered the same cross bill in 1843. He answers very briefly, admitting the death of James Southard, and that he is sole devisee and executor, and that said James had sold the Boston property under the decree and received upwards of $5,000. He says he does not know thatE. D. Cushing, or his administrator, had or has any claim against the estate of R. Whiting, and pleads and relies that if there ever was such claim as alleged, it has been long since paid and discharged; and he relies that James Southard was entitled to the whole proceeds of the sale of the Mill Pond lot.
In May, 18 , a decree was rendered in favor of Cushing’s administrator, against D. R. Southard as executor and devisee of James Southard, for $4940 00, together with the costs.
The sum decreed is not quite equal to the principal and interest appearing to be due at the date of the decree, either upon the three notes set up in the cross bill, or upon the balance of the account therein referred to, which is $2088 09, including interest to the 1st of December, 1826, to which date it seems to have been cal
1. To whatever weight the first objection might have been entitled if made at an early stage of the contest, or if Southard had not answered the bill without questioning the regularity of the proceeding, it comes too late if now made for the first time, and was too late even if made at the hearing of the cause, seven years after the bill had been answered, and the suit recognized during that period. The irregularity which might have been cured by a few strokes of a pen must be regarded as having been waived. And besides, as the original litigation was substantially ended, and as the cross bill was answered by all the parties to it, there would seem to be more propriety in regarding it as an original bill, because if the' complainant therein had not been regularly made a defendant in the suit, it could not properly be considered as a cross bill, than in dismissing it for that reason, at the end of a litigation óf sév
2. Although the account is expressly referred to in the original and amended cross bills as containing a statement of the demands of Cushing against Whiting the three notes were obviously the foundation of the suit, and the account was filed as auxiliary evidence in aid or explanation of the demand. Whether the allegations are sufficient to authorize a decree upon the account in the absence of all reference to the notes, it is scarcely necessary in one view of the case to decide-If there had been no notes, the allegations with respect to the account would doubtless have been different. We think there is ample evidence in the record of the existence and genuineness, and contents, of the notes as described in the original cross bill, and of their having been filed and subsequently mislaid or withdrawn, s° that they were not in the record at the hearing. The first and strongest evidence of the most important of these facts, is to be_ drawn from the pleadings themselves, from which we.have extracted so much as bears upon these questions. The statement in the first anj swer and cross bill, that the notes are therewith filed, is perhaps entitled in itself to but little weight. But the statement in the first amended cross bill in which E, R. Southard is made defendant, that they had been thqretpfpre filed, &c., is entitled to some consideration. But when we add the fact that Southard, who was deeply interested in defeating the claim, and whose answer shows that he would have denied its existence if he could, makes no motion to have them filed, and fails in his answer either to call for their production or to notice their absence, the conclusioi} is almost if not quite irresistible that the notes were then in the record. And as there is ample evidence in the transactions between R. Whiting and the Southard’s, as shown by their own exhibits and others, that D. R. Southard must have been well acquainted with the hand-writing of Whiting, and pnust have known whether the notes before him wevp
Then, as to the notes themselves, it is certain that they were not in the record at the hearing, and for some uncertain period before; and assuming that they had been filed, it is sufficiently evident that they must have been casually mislaid or destroyed, or that they were withdrawn improperly by some one. If withdrawn, it is not material by whom, unless it was by the administrator of Cushing, or some one acting for him; and considering his attitude in the cause, and the inferences already noted as deducible from the pleadings,
But there is still other evidence as to the filing of the notes, and as to theirgenuineness and contents and loss. G. Duncan, the counsel who wrote and filed the answer, states in his deposition, taken in January, 1850, that he received from Sidney Bartlett, the attorney and agent of Cushing’s administrator in Boston, a letter which he exhibits, dated Boston, October 8th, 1836, and postmarked accordingly, enclosing the first answer and cross bill, and, as he believes, the original notes of Whiting, which he thinks he filed with the answer, as it was his habit to do so, and he was generally required to do it, that he believed the notes were correctly described in the answer referring to them — that he had seen Ruggles Whiting write, and believes the signatures were in his hand-wi-iting, and if it had not been so, he would have been impressed with the fact. He also states that upon learning that the notes were not in the papers, he mnde a thorough search in the Clerk’s office, and also in his own office, and could not find them. Sidney Bartlett, in his deposition, taken in March, 1850, states that he enclosed the three original notes to Duncan, together with the answer of Cushing’s administrator, in a letter, dated October 8th, 1836, and which, as appears from the certificate of A. C. Spooner, then in his office, was deposited in the Post Office at Boston on the same day. Pie states the date and tenor of the notes, of which he had copies, as stated in the cross bill, and as exhibited in the copies filed by Whiting’s administrator, which are dated “Louisville, December 3d, 1822.” Poignard, in his deposition, taken in 1850, states that Dr. Cushing was in Louisville in the fall of 1822, to settle with Whiting. Mrs. Cushing, the widow of Dr. E. D. Cushing, who had released her interest, states- that on his return from Kentucky, he brought Whiting’s notes — that sometime afterwards he
“ Boston, Oct. 9,1816.
“ Value received, I promise to pay Mr. David Sawyer fourteen hundred dollars in sixty days, with interest.
“Ruggles Whiting.”
The same witness proves 'that E. D. Cushing’s wife was the only daughter and sole heir of David Sawyer, and Poignard says Sawyer had lent money to Whiting. It will be recollected that D. R. Poignard, in July, 1836, wrote to Dr. Cushing to present his account or claim to D. Hastings, &c. Several witnesses prove that the account presented to them, purporting to be an account of E. D. Cushing with Ruggles Whiting, showing a balance of $2088 09, the body of which is in the hand-writing of said Cushing, and which we understand to be the same filed by his administrator with his cross bill, has upon it, in the hand-writing of D. Hastings, now dead, the following: “Dr. Cushing, account vs R. Whiting, 1826.” Which shows that in conformity with the letter of Poignard to Cushing, and with-the order of Whiting accepted by Poignard, Dr. Cushing’s account had been presented to D. Hastings, claiming a balance of $2088 09 against Whiting. And Poignard says in his deposition above referred to, that Hastings sent him an account of Dr. Cushing, showing.
The first items in the account against Whiting are-1826. To his note, dated at Louisville 1st December
1822, $1915 66
To interest on same, say 4 years, 458 75
To his note, dated at Louisville, 1st December, 1822, 100 00
To interest on same 4 years, • 36 00
Then follow charges for services, &c., and credits, which, with interest, amount to $600, and leave the balance of $2088 09 above stated. The discrepancy between the notes stated in the account and the three notes set up in the bill, is relied on as an argument against both. But we think it is not to be doubted upon the evidence, that Dr. Cushing had received, on settlement with Whiting, his three notes as described in the bill, and that he made out this account in 1826 under the advice of Poignard, to present his claim to blastings. About the same time he obtained the copy of Whiting’s note to Sawyer, which, with the interest from its date, calculated from the 1st of December, 1822, and throwing off one-third of a month of 30 days, amounts to $1915 66, which exceeds the aggregate amount of the three notes by only about $33 40. It may be regarded as certain that the note to Sawyer was made the basis of the first charge in the account, and that it was sent for for that purpose.' And the inference is authorized by the facts that this was done because the three notes of Whiting could not be found when the account was to be made out, and that as Dr.
This last inference is, however, not necessary for the support of the notes, which, wholly unimpeached as they are, constitute as good evidence of Cushing’s claim as any which is furnished in favor of that of Southard, which, by the very instrument under which he claims to hold the proceeds of the Boston property, is postponed to any claim which Dr. Cushing may make to D. Hastings. But the inference under notice tends strongly’ to identify the claim under the notes, withthat under the account which was exhibited to Hastings, and approved and directed to be paid by Whiting. And the justice of the account is substantially corroborated by the notes executed at Louisville. If the notes had been present, the account would doubtless have stated them with precise accuracy; for the three notes certainly were the claim, or part of the claim, secured by the order. The discrepancies can only be accounted for by their absence. And if they were absent, the. discrepancies are not greater- than might be expected from a man who had forgotten where he had placed
With regard to the payment of the notes, which there has been no attempt to prove, the only circumstance which can afford any possible presumption in favor of it, is the fact of their being out of Dr. Cushing’s possession. But they were in possession of bis altorney and counsellor, and if placed there by or for Whiting, the fact should have been proved. Besides, Whiting recognized the debt up to a short time before his death. And in fact his circumstances for years before, as manifested in this case, were such as to preclude all probability of his having paid this debt after December, 1822, and especially after June, 1825, when he recognized the existence of a claim in favor of Dr. Cushing, by the order under which Southard claims, and in such terms as would lead to the inference that it was in a liquidated form.
But it is contended that the depositions of Bartlett, Duncan, and Poignard, which were excepted to as incompetent, should have been rejected — and it is neces
We think there is no ground for any of these objections. As to the attorneys, if there be any ground for a question between them and their employer as to their diligence or skill or want of either, it is not involved in the present case. The decree does not depend upon the presence or absence of the notes, and certainly not upon the question whether their absence was occasioned by the neglect or unskillfulness of the attorneys. The loss of the notes, whether by the carelessness of the attorneys or not, could at most only render it necessary to file an amended bill alleging the fact, or by some other means to lay the foundation for proving their contents by secondary evidence. And. so far from these attorneys being incompetent to prove what they did with the notes or that they are lost, because they had them in possession and should have taken care or made proper disposition of them, they are for this very reason the most proper persons to prove what they did with them. A decree against Cushing’s adm’r., would not certainly render the attorneys or either of them liable, and it would not be evidence against either of any fact, except that such a decree was rendered. And although a decree for their employer might close all question as to their responsibility, if this circumstance should render them incompetent, the same objection
With regai’d to Poignard, who is called to prove facts tending to support the complainant’s demand, and to give it precedence in the distribution of the fund in contest, he has clearly no interest on that' side of the case so far as appears in the present record. If Poignard retained the trust property and his original interest in it, it would be against his interest to establish Cushing’s claim. If he could be made liable to Cushing’s adm’r.-,-for having transferred the trust property or on any other ground connected with the trust, it would be necessary first to establish the claim which ho sustains by his evidence. A decree against the claim, upon any ground except that of his having conveyed the property to Guthrie under the agreement with the Southards, &c., would free him from all responsibility to Cushing’s adrn’r., and a decree against it on any ground whatever, would free him certainly from all responsibility to Southard, if in a different result' he
It is said however, that though he is competent, he is not credible, because he violated his duty and the trust reposed in him by Whiting, in attempting to appropriate to himself the Mill Pond lot, under a purchase of the equity of redemption for an insignificant sum, and more especiallyjby his disingenuous and delusive letter of July, 1826, to Dr. Cushing. But although these circumstances, and his failure to disclose at an-