25 Conn. 456 | Conn. | 1857
The plaintiff alleges in his first count, that in consideration that he would agree to become administrator on the estate of Joseph Meeker, deceased, by legal appointment, and as such administrator would settle the estate, the defendants assumed upon themselves and promised that they would fully indemnify him for all his proper services as administrator, and for all his expenses and charges incurred in the discharge of his said duties, so far as the estate of the deceased, which could be made available, should prove to be insufficient for his payment and indemnification ; and then, as the ground of recovery, he alleges that he has fully performed his part of the contract, and that the estate has proved insufficient to pay for his services and expenses, of which the defendants have had notice, and that they neglect and refuse to indemnify and pay him, &e.
The plaintiff proved that he took out administration under this agreement, and took certain measures as administrator in the progress of the settlement of the estate, but he failed to prove that he ever made any settlement of the estate; and the probate records show that no inventory of the estate was ever made, or that there was ever any settlement of the estate, or of his administration account with the court of probate ; and he now claims to recover on this count, without showing that he has administered and settled the estate; and the question is whether he can do so.
We see nothing in the contract itself, as the plaintiff has chosen to state it in this count, to excuse the performance of it on his part. He alleges such performance as the ground of his right of recovery; and it is obvious that so far as the acts to be done by him were in any sense material, they must be performed, or the whole foundation of his action fails. His agreement must be executed according to its legal effect, or he has no right to call for the indemnification promised him. Indeed, the character of the agreement was such as seems to render it impossible to know, with any legal
The defendants were examined as witnesses in the case, and, on their cross-examination, they were asked if they had not applied to Alva Gray, Esq., or some other person, to take out administration on said estate; to which they'answered that they had never so applied to any person whatever.
The contract stated in the bill of exceptions appears to us, as it was held to be by the court, a contract of indemnity merely. There was no agreement to pay absolutely for the plaintiff’s services, and to repay to him his expenses; but the agreement was to pay so much thereof as the estate should prove insufficient to pay. The claim against the defendants, therefore, was in the nature of a claim against them as sureties for the estate. It was substantially a guaranty that the estate should prove sufficient, and as such did not show the relation of debtor and creditor, upon which alone the common counts are founded.
There was no error, therefore, in this part of the case; but for the reasons before stated, we advise that a new trial be granted.
In this opinion the other judges, Storrs and Ellsworth, concurred.
New trial advised.