Gould v. Whitmore , 79 Me. 383 ( 1887 )

Libbey, J.

This is an action of assumpsit to recover for professional services and disbursements according to the account annexed to the writ, Two grounds of defence were pleaded by the defendant.

First. That the action was barred by R. S., c, 87, § 12.

Second. That it was barred by the general limitation of six years ; and it was claimed that these limitations were apparent upon- the face of the papers; but this contention was not sustained by the justice presiding.

We think the ruling correct. By the act of 1872, chapter 85, no action could be maintained against an administrator on a claim against the estate unless such claim was first presented in writing and payment demanded at least thirty days before the action "was commenced, and within two years after notice was given by him of his appointment-; and the right to commence such action was limited to two years and six months from the time such notice was given.

This act was amended by act of 1883, ch. 243, incorporated into the R. S., of 1883, ch. 87, § 12. By this statute the plaintiff is not required to present his claim in writing, and demand payment at least thirty days before commencing his action and within two years after notice of his appointment is given; but if he commences his action without so presenting his claim and demanding payment, he takes upon himself the burden of having his action continued at his cost to the next term of court, and such further time and on such other terms as the court shall order; and "a tender of payment, or offer thereof filed in the case during the time of such continuance shall bar the same, and the defendant shall recover his costs.” The same limitation of the right to commence the action to two years and six months is retained. The language used is not felicitous, but its meaning is plain. The fact that the plaintiff did not present his claim in writing, and demand payment before commencing his action is no defense to its maintenance. The statute treats the commencement of the action as a presentation of the plaintiff’s claim and a sufficient demand of payment, and gives the administrator sufficient time to investigate the validity of the claim, and tender or offer payment of it as a defense. Nor is it barred by not having been commenced within two years from the giving of notice.

Upon the second point it is sufficient to say that the action is not barred "on the face of the papers,” as a portion of the items in the account appear to be for services performed within six years before the action was commenced.

By the agreement of the parties the case must go to the assessor agreed upon to assess the damages and he must determine upon the evidence submitted how much is due and what items in the account, if any, are barred by limitation.

Exceptions overruled. Peters, C. J., Walton, Virgin, Emery and Haskell, JJ., concurred.