Docket No. 108 | Mich. | May 12, 1903
In 1887 the firm of Westervelt & Dennis, composed of defendant Dennis and John W. Westervelt, became indebted to Amos W. Randolph in a sum in excess of $1,500. Westervelt died in November, 1887, and during the same month the defendant Dennis made over to his wife all the property which he possessed, amounting to something like $16,000, and from thence he represented that he had no property; that nothing could be collected of him. In 1891 Randolph commenced suit upon the claim against Dennis, as survivor of the firm of Westervelt & Dennis, which suit was pending at the time of Randolph’s death, which occurred in 1891. In November, 1891, Mary A. Randolph was appointed administratrix of his estate in California, the place of his.decease, and in August, 1892, indorsed the claim held by the estate to the defendant Castle for collection. Afterwards, in December,'1892, Mrs. Randolph was discharged as administratrix. Castle afterwards commenced suit on the notes and account in his own name, and finally recovered judgment on November 14, 1895, for $2,314.27 damages, and costs taxed at $217.98. On February 15, 1896, Dennis, and High, acting in his behalf, and Castle, assuming to act with authority, undertook to compromise the judgment, Dennis paying to Castle $1,750, and Castle making an assignment to High, reciting the receipt of but $1,200. Thereafter, on an application by Castle, the complainant was appointed the 'administrator of Randolph by the probate court of Clinton county, and this bill is filed for the purpose of having this alleged settlement declared ineffectual, and requiring the defendant Dennis to pay to complainant the balance of said judgment and costs. The
The circuit court dismissed the bill on the ground that Castle had full authority to make the settlement. We think that in this he was in error, for two reasons: First. The letter which he relied upon as conferring the authority was written by Mrs. Randolph after the attempted settlement was made, and was clearly not written with a knowledge of the facts as they existed. But, more than this, at the time she wrote this she had no power to bind the estate. She had been discharged as administratrix, and whatever power had been vested in Castle before that time by her must be deemed to have terminated upon her discharge as administratrix. Furthermore, there was no consideration for the discharge of the judgment for the excess.
It is contended by defendants’ counsel that the complainant is not entitled to relief because guilty of laches in not attacking this transfer earlier, the transfer having been made in 1887. But in determining this question it is not to be overlooked that the defendant Dennis threw every obstacle possible in the way of the collection of this claim, and it was not until 1895 that the judgment was obtained, and since that time, and intervening that day and the appointment of the complainant as administrator, there was no one authorized to represent the heirs at law of Amos W. Randolph, deceased. This fact also answers the contention that there is an estoppel. It is also suggested that Castle, being the only alleged creditor of the estate, should be held estopped. But, even though there may not be other creditors, there are heirs interested in this estate and in the due administration thereof. The defendant Dennis had full knowledge that Castle was acting in a representative capacity. His own conduct was fraudulent throughout. He is in no position to appeal to this court for protection on the ground of estoppel, though
We think the decree of the court below should be reversed, and one entered here in favor of the complainant against Dennis for the excess of the judgment over and above the $1,7.50 received, and defendant Castle to be required to account for the amount received, with interest, and that ah accounting be had between him and the administrator. Complainant will recover.costs of both courts.