Baker v. Fuller , 1879 Me. LEXIS 28 ( 1879 )

Libbey, J.

This action is against the defendant in his private capacity, and not against the estate of which he is administrator.

The evidence introduced by the plaintiffs tends to prove the following facts: D. B. Fuller, the defendant’s intestate, contracted with the United States to carry the mail from Augusta to Belfast from July. 1, 1873, to June 30, 1877. He afterwards made a parol contract with the plaintiffs to carry it over a part of said route, from Palermo to Belfast, during the time covered by his contract, for $800 per year, to be paid quarterly. He died in the summer of 1874. The defendant, after his appointment as administrator, requested the plaintiffs to continue to carry it as they had agreed to do with his intestate, and agreed to pay them therefor the same sum and in the same manner that he was to pay ■them. The plaintiffs performed the services as agreed on their part, and the defendant paid them in full therefor, excepting for rthe last quarter, ending June 30, 1877.

It is claimed by the defendant that his promise was to pay the -debt of another, and not being in writing, is within the statute of ■frauds, and void. If it was to pay a debt against the estate of his intestate, it is not binding upon him. Was it to pay the debt of -the estate ? The contract between the plaintiffs and the defend-ant’s intestate was for services not to be performed within a year. If it was not in writing, as the evidence tends to prove, it was -within the statute of frauds, and could not be enforced. The plaintiffs might maintain an action against his estate for services rendered under it prior to his death, but not for services rendered after it. His death put an end to the employment. The defendant could not create a legal liability against the estate by any undertaking on his part in his capacity as administrator. Davis v. French, 20 Maine, 21. Baker v. Moor, 63 Maine, 443.

There was, then, no debt against the estate which he represented, to which his promise was collateral. If he promised the plaintiff's, in his representative capacity, to pay them for their services if they would render them, inasmuch as ho could not thereby create a legal liability against the estate, he rendered himself personally liable. Davis v. French, supra.

We think the evidence is sufficient to authorize the jury to find a promise by the defendant, in his own right, to pay the plaintiffs for their services.

Exceptions sustained.

Appleton, O. J., Walton, Barrows, Daneorth and Peters, JJ., concurred.