Holbrook v. Blodget , 5 Vt. 520 ( 1833 )

The opinion of the Court was delivered by

Williams; J.

The question to be decided in this case arises from the omission of the Court to charge the jury as requested by the plaintiff. If the plaintiff was entitled to the charge requested, then the judgement must be reversed, as the Court omitted to state the law as claimed by; the plaintiff. The first and third request appear to be nearly the same, and are founded on the idea that the agreement of the defendant not to oppose the allowance of the plain-, tiff’s account, as administrator would not- be a legal consideration for the discharge executed by the plaintiff; .

It appears that the. plaintiff, as administrator to the estate óf Morgan, has presented to the. Court of Probate his administration account for allowance. The defendant, as one of the heirs, appeared to oppose the allowance of the account.1 This the defendant might do for his own benefit aloné; and if he did, it then became a controversy between him and the administrator. It does not appear from any part of the testimony, that he was agent for any of the oth-ev heirs. — Nor is the request to the Court predicated upon any such supposition. The defendant, therefore, by agreeing to withdraw his objections to the allowance of the account, was in no way instrumental in assisting the administrator to defraud the other heirs. The Judge of Probate was to allow the account, and to see that it was correct.— The other heirs were undoubtedly notified, and might have made the same objection as the defendant. If they did not choose to be at the expense of contesting the administrator’s account, and the defendant did think proper so to do, the controversy was wholly between this plaintiff and this defendant. A settlement of this controversy, to avoid further litigation, may have been, & was undoubtedly thought by both to be, advantageous to both.

This-was a legal consideration for a contract, and also for the discharge which the plaintiff then executed. The plaintiff was not therefore entitled to the charge which he asked on his first and third request, to wit, that the jury should be told that the discharge executed under such circumstances was inoperative and void.

The second request is founded upon the supposition that there was no fraud intended or practised, but that the discharge was executed on the suggestion of Mr. Cushman, that not more than thirty dollars were due to the plaintiff, when there was a greater sum; and the plaintiff therefore claimed that it should be good only for that-sum, although the plaintiff was told that the settlement was to be made without any regard to the amount due. But if the plaintiff did set his name to the discharge understandingly, and being informed that it must be a discharge of the whole, sum due on the judgement, he must' abide by the legal effects of that instrument which he then executed, more especially as the-meansof ascertaining the bálafice whs equally within the power of either of the parties, and depended only on-a computation. He must, or might have known the amount of his own claim, and if he chose to-rely on the state-1 ment of Mr. Cushman, he cannot now complain. This is wholly different from the case supposed in the argument, when a person intends to take a note*for the amount of a judgement, and on application to the Clerk for a statement of the judgement, he gives them a wrong sum : In that case, the note is intended to be given for the amount as ascertained. In this case, the parties intended to discharge the whole claim, more or les — making what is vulgarly called a jumping settlement. The statement of Mr. Cushman was only a part of the conversation preparatory to the final adjustment. The plaintiff therefore was not entitled to the charge asked for in this request.

The Court was not requested to point out particularly what fraud would operate to avoid a discharge; but those facts which the plaintiff claimed to have considered as conclusive evidence of fraud in the first and third request, we do not think constituted any fraud whatever. The discharge, therefore, which was executed by the plaintiff, was a bar to his claim.

The judgement of the County Court is therefore affirmed.