Fleming v. Rothwell ( 1848 )

Charge of the Court.

Harrington, Judge:

This case which appeared to be somewhat involved when first brought to our notice, on account of the different relations of the parties, is not difficult to be understood when we come to a distinct knowledge of the facts.

The action is covenant on a sealed instrument, dated November 12, 1828, by which Gideon Emory, the defendant’s trustee, bound, himself to indemnify Joseph Fleming, the plaintiff, against a certain "liability he was under, or might come under, to pay a certain claim to William Rothwell. To understand the origin of this covenant, and also its object, it is necessary to inquire finto the relations of the parties and their position towards each other.

It appears that on the decease of a certain Nicholas Barlow, Hannah Barlow his widow, Bathsheba Barlow his child, Gideon Emory and Isaac Walker became 'his executors. Bathsheba Barlow, one of the executors married Gideon C. Emory, a son of Gideon Emory; and after his death, which seems to have taken place very soon, this lady administered on his estate and afterwards married Mr. Joseph Fleming, the plaintiff in this action. Mr. Fleming became by this marriage involved in the settlement not only of Gideon C. Emory’s estate, but also of Nicholas Barlow’s estate; and co-executor of that estate with Mr. Gideon Emory, the father ; and he and Gideon Emory seem to have been the acting executors of .that estate. This connection as executors of Nicholas Barlow produced the settlement between Fleming and Gideon Emory referred to and recited in the instrument which is the foundation of this action; and in which it is stated that they had mutually passed acknowledgments of such settlement.

There is another matter stated in the recital of this instrument, which is, that there was a sum of money due from Mr. Fleming’s wife, as the administratrix of Gideon 0. Emory, to William Roth-well, in right of his wife, being the one-half of Gideon 0. Emory’s part of his brother Charles Emory’s estate.

William Rothwell married Ann Emory, the sister of Gideon C. and Charles Emory, both of whom seem to have died without issue ; Charles Emory dying first. On the death of Charles Emory, William Rothwell, in right of his wife, was entitled to one-half of his estate, and Gideon C. Emory to the other half; and on the death of Gideon C. Emory without issue, Rothwell became entitled to receive of Fleming, who had married the widow, the other half; and this appears to be the claim referred to in the recital of this instrument. But this widow was Gideon Emory’s daughter-in law, and the claim arose on account of her first husband Gideon Emory’s son; under these circumstances Gideon Emory covenanted with Mr. Fleming, first, to give him his part of the fees on the settlement of Nicholas Barlow’s estate, to go towards the payment of this claim of Roth-well, and secondly, to pay to Mr. Fleming the balance due Roth-well from the estate of Gideon C. Emory, so that Fleming should lose nothing by paying that claim.

This action is for a breach of these covenants. The plaintiff alledges he has paid to Mr. Rothwell the sum of $424 20, which was due to him in right of his wife, from the estate of Gideon C. Emory, which the estate of Gideon Emory is bound by the force of this covenant to repay him.

The first thing is to ascertain the extent of the covenants. 1. The first is to give Fleming the amount of Gideon Emory’s share of the fees on settlement of Nicholas Barlow’s estate, to go towards the payment of Rothwell’s claim. 2. The second is to pay Fleming the balance due to Rothwell in right of his wife, from the estate of Gideon C. Emory, so that Fleming shall lose nothing by paying that claim to Rothwell.

If the case stood upon the recital alone that there was money due from Mrs. Fleming as administratrix of Gideon C. Emory, to Rothwell, that is, oiie-half of Gideon C. Emory’s part of Charles Emory's estate, we should say that the extent of this covenant was to pay only the balance of what was shown to be due from Charles Emory’s estate, after deducting the administration fees due old Mr. Emory; but the second covenant, and the whole instrument, especially the concluding clause, satisfies us that the true construction of this covenant is, that Gideon Emory bound himself to repay to Fleming any balance due to William Rothwell, from the estate of GUdeon C. Emory; so that, in the language of the instrument itself, “Joseph Fleming shall lose nothing by paying the claim due from the estate of Gideon C. Emory to William Rothwell, in right of his wife.” The jury will inquire then as to the amount of fees due on the settlement of Nicholas Barlow’s estate, to which Gideon Emory was entitled, and what was the balance of the claim due to Roth-well. Also, at what time Joseph Fleming became entitled to call on Gideon Emory to indemnify him against this claim.

The defence setup, independent of a construction of the instrument, on which we have already remarked, is: 1. That as this claim of William Rothwell was in right of his wife, who is proved to have been dead in 1835, the plaintiff was not bound to pay it to him, and he could not have recovered it, without taking out letters of administration on his deceased wife’s estate; and, as he could not have recovered it, the plaintiff’s payment to him was in his own wrong, and does not give him a right of action on this covenant. We think differently. The covenant of Gideon Emory, was not to pay to Fleming what should be, or even what, could be, legally recovered of him by Rothwell; for then he never could have paid any thing without a suit at law; but it was to pay him what was due to Rothwell, so that he should lose nothing by paying that claim. Now this sum, by an act of assembly, was due to William Rothwell on the death of his wife; as much due to him before as after administering on his wife’s estate, for the fact that it is so due to him entitles him to the administration; though it is perfectly true that he could not recover it by a suit at law without administering. But this covenant of Gideon Emory does not confine itself to the amount which might be recovered at law against Fleming; it speaks of the matter as a claim, as something which was already due, and it binds the covenantor to repay to Fleming whatever sum he should pay Rothwell on account of this claim, so that this sum was due to him from the estate of Gideon 0. Emory, and in right of his wife. Whatever sum, therefore, the plaintiff has shown that he paid to Rothwell, which was due to him on this account, he is entitled to recover back from the estate of Gideon Emory under this covenant.

Rogers, for plaintiff. Rodney and Bayard for defendants.

2. The next defence, and perhaps the principal one in this case, arises under the plea of payment.

On this subject there is now no difference between the counsel as to the law; the concluding counsel agreed that the principles stated by the other side were the same with his, namely that there was no such lapse of time in this case as would amount to a legal presumption of payment; while they both agree that time may be regarded with the other facts in the cause, such as the condition and relation of the parties, the settlement of accounts, the existence and settlement of bonds and other matters of fact presented to the jury, as actual proof of payment. It is not for us to comment on the force, or want of force, of any such evidence in this cause. The facts are with the jury. Whatever balance' you find to have been due from the estate of Gideon C. Emory to William Rothwell, in right of his wife, after applying Gideon Emory’s share of the administration fees of Nicholas Barlow’s estate; if Joseph Fleming has paid that balance to Rothwell, and the evidence does not satisfy the jury it has been repaid to him by Gideon Emory, he is entitled to recover it from Gideon Emory’s estate, under the covenants which he has sued upon in this action.

Exception prayed and granted.

The plaintiff had a verdict for $419 20.