Heard v. Lodge , 37 Mass. 53 ( 1838 )

Dewey J.

delivered the opinion of the Court. To maintain this action, it is incumbent on the plaintiff to establish two points : 1. That a judgment has been obtained in a court of law against the administrator on the estate of Mary Lang-don, in favor of the Boston Glass Manufactory, for whose benefit this suit is instituted ; 2. That payment of the sum thus ascertained to be due, has been demanded of the administrator.

The first of these points is proved by the records of this Court, and not controverted by the defendants.

As to the question of a demand on the administrator for the payment of this judgment, the defendants resist it on several grounds.

1. They deny that there was any such corporation, having a legal existence and competent to make a demand, as the Boston Glass Manufactory.

Upon the trial before the jury, the plaintiff claimed that the judgment rendered in favor of the Boston Glass Manufactory, against the administrator, was conclusive evidence of the existence of the corporation, and particularly so, as it appears that the precise fact of the existence of this corporation was put in issue and determined in that action. The judge ruleu that this judgment was conclusive evidence of the existence of the corporation at the time of the rendition of the judgment, but that evidence was admissible to prove a dissolution of the corporation after that time and before the making of the demand.

It is now urged on the part of the defendants, that the judgment referred to was, as regards these sureties, between other parties, and therefore they are not bound by it.

To most purposes, it seems to us, that the sureties in an administration bond are, as well as the principal, estopped from controverting the validity of a judgment ascertaining the amount of a debt to be paid by the administrator. They are in many respects like the sureties in a bail bond, and equally bound by the proceeding against the principal. The duty they have assumed is, that their principal will pay on demand all debts ascertained by judgment of a court of law against him in his capacity as administrator, if the estate be solvent. His failure to make payment is a breach of the administration bond. The sureties are not to be concluded by a judgment suffered collusively by the administrator, and they have also the right to insist that the action against the administrator in the name of the creditor shall be commenced within four years from the time when the administrator shall give the public notice of his appointment required by the statute. This statute provision was undoubtedly intended for the benefit of the sureties. It is a positive bar arising from lapse of time, which cannot be waived by the administrator, nor in any way be answered or avoided. Its effect is therefore controlling and decisive, and to this extent the sureties may object to the effect of a judgment against their principal, when sued on their bond to the judge of probate. Such was the decision of this Court in the case of Dawes v. Shed, 15 Mass. R. 6, cited by the counsel fo- the defendants. But that case furnishes no precedent for this defence, inasmuch as no such objection as was there urged, exists here.

We are satisfied, that as to all those matters of defence going to the merits of the debt as between the original parties, the judgment against the administrator must be taken to be conclusive in a suit on the administration bond, where there has not been fraud or collusion. In the present case the facts not only fail to show any such collusion, but it is quite apparent that the administrator resisted the former action upon the same ground, as the defendants are now desirous of presenting in this suit.

The defendants offered some evidence to the jury, for the purpose of proving a dissolution of the corporation after’ the rendition of the judgment against the administrator, but it was clearly insufficient for the purpose, and that point was not understood to be urged further by the counsel for the defendants.

But the defendants insist that no legal demand has been made, because of the insufficiency of the authority of the agent by whom the same was made. The authority of Mr. Sullivan to act in the matter, was placed by the plaintiff on two grounds. 1. That he was the attorney of record in the suit of the Boston Glass Manufactory against the administrator 2. That he was one of the assignees of the corporation, and an agent with general authority from his co-assignees to do any act necessary to settle the claims of the company. His authority as the attorney of record would, in our opinion, authorize him to make the demand, and upon payment to discharge the judgment. It is within the scope of the powers of the attorney to institute all such further proceedings as are necessary to render the judgment effectual to the creditor in the recovery of his debt. It has been held to be the imperative duty of an attorney in the original action, where the body of the debtor was arrested, to institute a scire facias against the bail; and if he neglect so to do, he is held responsible.

It was clearly within the authority of Mr. Sullivan, as the attorney of the creditor, to take all the preliminary measures requisite to the institution of a suit on the probate bond. If this were doubtful, we think he had ample authority arising from his relation to this debt, as one of the assignees and the agent of his co-assignees.

It was objected on the part of the defendants, that an authority to four persons to act for the corporation, could not be properly held to authorize acts in their behalf by only one of their number. It is undoubtedly true, in many cases of delegated authority, that it requires the united act of all the constituted agents or attorneys to the legal exercise of the power delegated to them, but that the mere authority to receive money on a debt due to their assignor may be exercised by one of several assignees, in behalf of all, seems to us too obvious to be questioned.

But it is further contended, that the demand was not made in a suitable place, and also that there was no absolute refusal of payment on the part of the administrator.

Upon recurring to the facts reported in the case, it seems that after the recovery of the judgment against the administrator, Mr. Sullivan notified Lodge of the fact, and requested payment, to which Lodge replied that no decree had yet been made by the judge of probate, and that when it was made the money would be paid.

■ After the decree was made, and after various written communications between the parties in reference to this claim, it appears that Mr. Sullivan met Lodge in State street, and again requested payment, which was refused by Lodge. Some further conversation ensued between the parties, which is particularly detailed in the report of the evidence given at the trial. The judge ruled, that. if one party intended to make a demand, and the other so understood it, and did not object to the time or place, nor propose any other for that purpose, but expressed an intention not to pay, it was a legal demand in this respect.

Is there any objection to the rule of law as thus stated ? It is a familiar legal principle, that the necessity of a formal demand is often waived or obviated by the conduct of the other party, or where the state of - the case is such as to show that a demand would have been entirely unavailing. It is particularly true in a case where the party wholly denies the right of him who seeks performance, that the demand need not have all the formalities that would be essential, if the party conceded the right of the other, and only claimed the privilege of performing the contract or duty devolved on him, at a different time or place.

Many cases to this point are found in the books.

In the case of Richardson v. Learned, 10 Pick. 262, a demand was made six miles from the dwellinghouse of the defendant, for the delivery of property which he was hound to deliver at his dwelling-house. The defendant replied to the demand, that he meant to keep the property ; and this was held, under the circumstances, a sufficient demand.

A very strong case of the extent of this principle of waiver of legal demand on the part of an executor, is that of Miles v. Boyden, 3 Pick. 213. In that case the executor, being called upon by the father of the legatee, who was an infant, for the payment of a legacy, refused paying the same, assigning as a reason that there- was no legacy given to the infant by the will of the testator, but making no objection to the authority of the father to make the demand ; and it was held by the Court, that the executor had thereby waived the necessity of any other demand, although by law the father had not by virtue of that relation to the legatee, a legal right to demand payment of the legacy.

The legitimate object of a demand is to enable the party to perform his contract or discharge his liability, agreeably to the nature of it, without a suit at law, and whenever one party wholly denies the right of the other, a demand must be useless. The rule in chancery seems to be, that if the defendant in his answer denies the right of the plaintiff, he cannot also insist in his defence that there was no legal demand ; as was held in Ayer v. Ayer, 16 Pick. 327.

But at law it is otherwise to this extent, that if the defendant does not by his declarations and conduct furnish any evidence from which the jury can infer a waiver, or if the circumstances of the case do not clearly show a demand could not have been complied with, the defendant may on the trial insist upon proof of a demand, although he also denies the right of the plaintiff

Upon a full consideration of the various objections taken by the defendants', the Court are of opinion that the law was correctly stated by the judge at the trial, and that judgment should be rendered on the verdict.