Sims v. Stilwell , 4 Miss. 176 ( 1839 )

Mr. Chief Justice Sharkey

delivered the opinion of the court.

The plaintiff instituted this action on the written promises of the defendant, made by him as executor, and the question is, whether he is liable in that capacity, or individually?

■ By first laying down the principles of law, we can the more readily make an application of them to the case before us.

■ An executor is individually responsible, although he expressly promise “as executor,” where the nature of the engagement necessarily creates an individual liability. For example, for money had and received, for money due on an account stated, when it does not appear that it was for money due by the testator; on a promissory note or other written contract, when it does not clearly appear that it was given or made for a debt or liability of the testator, or if it be made to pay at a future day with interest, which necessarily makes it the debt of the executor individually. Powell v. Graham, Executor, 7 Taunt. 581; Childs v. Monins & Bowles, 6 Eng. Com. Law Rep. 200; Chitty on Contracts, 84.

The first contract set out in the bill of exceptions, follows an account for lumber charged to Hord & Sims. The account amounts to 211 dollars and. 71 cents, and the agreement evidently refers to it as the foundation of the undertaking, and was probably made at the bottom of the account on the same paper. The agreement is in these words: “ I, as executor, am responsible to William H. Sims, for the amount of the above account, 211 dollars and 71 cents, when he shall have settled the same with John Bobb, and taken his receipt for it. 22d March, 1837. Everett Stilwell, Executor.” Following the agreement is this memorandum: “ The within bill of John Bobb is for lumber for the house of Lewis Hord deceased, which I as executor, am having completed. 22d March, 1837. Signed E. Stilwell.” This contract must be taken, altogether, and not any particular part of it separately. What is the legal effect? The lumber is charged to Hord & Sims, and this is the only evidence that it was a debt due by Hord in his lifetime. Then comes the agreement of the defendant to be responsible, and it is made in reference to the account as stated. There is nothing to confine its operation to the defendant as executor, unless it be the words “ as executor,” used in the promise, and they cannot have that effect. Next comes the memorandum, showing that the lumber was for a house which the defendant was then having completed. This explanation counteracts the effect of the charge in the account to Hord, by showing that the defendant was engaged in completing a house with the lumber. So far, therefore, from this contract showing a debt due by Hord in his lifetime, its evident tendency is to show the reverse. Nothing but an individual liability was here created. We cannot know that the defendant had any authority to complete a house, or to make the estate liable for it. Usually executors are individually liable for all contracts they may make. The testimony of the witnesses does not materially change the case, even if it were competent to change the nature of the contract by parol testimony. One of the witnesses stated that he was employed to "work on the house by Hord and the plaintiff, and that after Hord’s death, the defendant took the management of the building. It does not appear by his testimony, that this lumber was purchased by Hord. This contract was, therefore, improperly rejected by the court.

The next agreement is in these words: “ I Everett Stilwell, executor, admit and acknowledge, that the bill of John Miller, for lumber furnished on William H. Sims’ order, since the death of Lewis Hord, amounting to about seven or eight hundred dollars, is just, and that I will pay the same, said lumber having been furnished for carrying on a building, which I, as executor of Hord’s estate, am having completed. This 22d March, 1837. Everett Stilwell, Executor.” In reference to this contract, there certainly can be no pretence, that it makes the defendant liable as executor only. It is clearly an undertaking which makes him individually responsible. The court, therefore, erred in charging the jury, that if they believed the defendant intended to bind himself only as executor of Hord, they must find for the defendant. And also, in charging that it was necessary to prove the consideration. The promise is an express acknowledgment, that the lumber had been furnished on the order of Sims, and •it was proved that it had been paid-for by Sims. The consideration was sufficiently proved.

Judgment reversed, cause remanded, and venire de novo awarded.