Coburn v. Harris

•Construction of see. 108, of Art. 93, of the Code—What constitutes a Rejection, of a claim by an Administrator within the meaning of that section—Claim not within the meaning of said section—W hat claims are within the provisions of said section—Administrator. By sec. 108, of Art. 93, of the Code, it is provided that “if a claim be exhibited against an administrator, which he shall think it his duty to dispute or reject, he may retain in his .hand assets proportioned to the amount of the claim, which assets shall be liable to-other claims, or to be delivered up or distributed in case the claim be not established; and if on any claims exhibited and disputed as aforesaid, the creditor or claimant shall not, within nine months, after such dispute or rejection, commence a suit for recovery, the creditor shall be forever barred.” A claim against an intestate’s estate, duly authenticated and .passed by the Orphans’ Court, was exhibited on or about the 28th of March, 1878, to the intestate’s, administrator for payment, and was objected to and not paid. Suit for the whole claim was then instituted, and in that suit the-plea of never promised as alleged was filed on the 3rd of September,. 1878. At the trial the right to recover a part of said claim, under the pleadings was abandoned, and a new suit for the part so-abandoned was brought on the 4th of March, 1880, the claim then sued on being for money payable to the plaintiff for goods bargained and sold to the defendant’s intestate in his life-time, and: delivered since his death to his administrators. Held : 1st. That a more formal demand than by suit could' not be made,, and a rejection of, and refusal to pay, could not be more solemnly made than was made by such pleas as were interposed in the first-suit denying the plaintiff’s claim in toto; and if the statute were applicable to such a claim as the one for which the new suit was brought, the plaintiff was not entitled to recover. 2nd. That the claim, however, was not within the meaning or contemplation of sec. 108, of Art. 93, of the Code. 3rd. That said section refers to such claims against the decedent as imperatively require both authentication and passage by the Orphans’ Court before the administrator would be protected in paying. 4th. That where the claim arises, as this claim did, from dealing with the administrator and delivery of the materials to him, and he knows all about it, the creditor need not get his claim proved and passed before the administrator would'be justified in paying it. 5th. That in thus dealing with the creditor on behalf of the estate-the administrator makes himself liable as such administrator, and he gets his allowance of the claim thus paid, according as the Orphans’ Court may be satisfied he has acted fairly in the matter. 6th. That as a matter of practice however, the administrator ought to fortify himself by procuring the creditor’s'probate.

Appeal from the Baltimore City Court. The c;ase is stated in the opinion of the Court. Exception.—At the trial _ the plaintiff offered the six following prayers: 1. That if the jury find that the defendant’s intestate, the late Thomas Coburn, had a contract with the Cemetery Company for the construction of the Boundary avenue wall referred to in the evidence, and that said Thomas Coburn entered into an agreement with the plaintiff for furnishing all the new stone that would be required in the construction of said wall at .f 2 per perch, and that said Thomas Coburn died while said wall was being erected, and before its completion, and that his administrators completed said wall in pursuance of the contract made by said Thomas; and shall further find, that said plaintiff) in pursuance of his agreement to furnish all the new stone required for said wall, (should they find such agreement,) furnished stone therefore to said administrators, after the death of said Thomas; and shall further find, that the entire amount dire by said company for said wall, including that completed, after the death of said Thomas, as well as that completed at the time of his death was collected by, and paid to said administrators, as assets of the estate of said Thomas, then the plaintiff is entitled to recover for such amount of stone, (not exceeding the quantity claimed in the bill of particulars,) as they may find was so furnished by him to said administrators after the death of said Thomas, unless they find that after having been passed by the Orphans’ Court, the claim now sued on was presented to plaintiff, or his attorney, to said administrators for payment, and was by them disputed or rejected, and that the plaintiff failed to commence' a suit for the recovery thereon, within nine months thereafter. 2. That on the pleadings and evidence, even if the jury find that the general account, as passed by the Orphans’ Court and .offered in evidence, on which is the charge for 2153 perches of stone furnished for Boundary avenue wall, was presented for payment after having been passed by the Orphans’ Court, and was, as a whole, disputed or rejected, such dispute or rejection of said general account, as a whole was not a dispute or rejection of the claim now sued for; if the jury believe from the eAddenee that all the stone furnished by plaintiff for Boundary avenue wall, was so furnished under a contract made for the same, separate and distinct from any other stone or material charged for in said general account, and that the claim now sued on was included in the charge of 2153 perches aforesaid, and that said dispute or rejection was because of other claims or charges contained in said general account, and in nowise because of the charge therein for stone furnished Boundary avenue wall. 3. That on the pleadings and evidence, even if the jury find that the claim sued on was disputed or rejected by one of the joint administrators of said Thomas Coburn, such dispute or rejection is not a bar to plaintiff’s recovery; if they further find that said claim never was disputed or rejected, but on the contrary, was admitted to be correct by the other administrator. 4. That even though the jury find that the claim now sued -on was rejected or disputed on March 28th, 1878, such rejection or dispute is not a bar to recovery in this case; if they further find that on September 3rd, 1878, plaintiff did commence a suit against said administrator for the recovery of the claim now sued on, together with other claims, and that said suit continued pending until sometime in June, 1879, and that during the trial thereof, it was determined by the Court on the objection of defendant that the plaintiff, on the pleadings in that case, could not recover for the claim now sued on, and that the same was thereupon withdrawn hy plaintiff from that suit publicly stated at the time, in the hearing of the defendant and his counsel, with the purpose of bringing another suit thereon, and that an appeal was taken by defendant from the judgment in said suit, and that said appeal involved a question, the determination of which might preclude any recovery on the claim now sued on, and that said appeal was argued January, 1880, and decided March 81st, 1880, and the present suit brought March 4th, 1880. 5. That on the pleadings and evidence, even if the jury Should find that the claim sued on was, after authentication, disputed or rejected by defendant, such rejection or dispute does not preclude a recovery, if they further find that the estate of said Thomas Coburn has not been fully administered, and that there are sufficient assets in the hands of the administrator to pay the same. 6. That if the jury find for the plaintiff, then the plaintiff is entitled to recover according to the price agreed upon between him and the said intestate, if the jury find that any price was agreed upon; and should they see proper to do so, under all the circumstances of the case, they are at liberty to allow interest on such amount as they may find the plaintiff entitled to, from the date of the passage of the account offered in evidence by the Orphans’ Court of Baltimore City. And the defendant offered the six following prayers: 1. If the jury find from the evidencie, that on or about the 25th day of February, 1878, the plaintiff exhibited in the Orphans’ Court of Baltimore City his bill against the estate of Thomas Coburn, authenticated by his oath and that of the witness, William H. Heagy, and offered in evidence in this case, and that the said bill so exhibited and authenticated, was passed by the said Orphans’ Court, and that after having been so exhibited, proved and passed, the said bill was presented by William A. Stewart, Esq., as the authorized attorney of the plaintiff', to the defendant, on or about the 28th. day of March, 1878, and payment thereof was demanded hy said Stewart of the defendant ; and if the jury further find, that upon such presentation and demand, the defendant refused to pay said hill, hut on the contrary disputed and rejected the same as presented, as testified to hy said Stewart; that the claim now sued on for 415 perches of stone, is part and parcel of the item of 2153 perches of stone mentioned in said hill, then the plaintiff is not entitled to recover, even although the jury shall. further find, that the defendant did not, in express terms specifically dispute, reject or. object to the said item of 2153 perches, or any part thereof. 2. If the jury believe from the evidence, that the claim now sued on, is part and parcel of the item of 2153 perches mentioned in the hill exhibited hy the plaintiff against the estate of Thomas Coburn, in the Orphans' Court of Baltimore City, and that at any time prior to the third day of June, 1879, the said hill, including the claim now sued on, as part and parcel of said item of 2153 perches of stone was presented to the defendant hy the authorized agent and attorney of the plaintiff, and payment thereof demanded, and that payment of said hill as so presented, was refused hy the defendant, and the said hill was disputed or rejected hy him, then the plaintiff is not entitled to recover,- even although the jury may find that no objection was made hy the defendant to the item of said 2153 perches of stone, or any part thereof. . 3. That if the jury find from the evidence, that at any time prior to the 4th day of June, 1879, the claim now sued on after being authenticated by the oath of the plaintiff, and passed hy the Orphans' Court, was presented fo.r payment to the defendant hy the plaintiff, or hy some one. authorized hy him, so to present it, and was disputed and rejected hy the defendant, then the plaintiff, upon the pleadings in this case cannot recover, and their verdict must he for the defendant. 4. If the jury find from the evidence, that the claim now sued on, together with other claims of the plaintiff, against the estate of Thomas Cohurn, deceased, authenticated hy the oath of the plaintiff, was presented hy him to the Orphans’ Court of Baltimore City, on or about the 25th day of February, 1878, and was passed by said Court and that subsequently the said claim so authenticated and passed, and including the item now sued for as part and parcel of the item of 2153 perches of stone mentioned in said bill, was presented by William A. Stewart, Esq., the authorized attorney.of the plaintiff, to the defendant, and payment thereof was demanded on or about the 28th day of‘March, 1878, and that after such presentation of said claim, payment thereof was refused by the defendant, and that this suit was not brought until the 4th day of March, 1880, then the plaintiff is not entitled to recover, and their verdict must be; for the defendant, even although the jury shall further find that after the death of said Thomas Coburn, the plaintiff delivered to the defendant the 415 perches of stone mentioned in the plaintiff’s bill of particulars, and although the defendant did not specifically object to, dispute or reject the said item of 2153 perches of stone mentioned in the bill presented by said Stewart to said Coburn, as testified to by said Stewart, or any.part thereof; provided, they find that the whole of the claim as presented, was disputed ox rejected, as explained by the instruction given by the Court. 5. That there is no evidence that the bill of the plaintiff against the estate of Thomas Coburn, as passed by the Orphans’ Court of Baltimore City, on or about the 25th day of February, 1878, ever was admitted to be correct by either John Cohurn or George Coburn, administrators of said Thomas Coburn. 6. If the jury find from the evidence, that the claim now sued on, together with other claims of the plaintiff against the administrators of Thomas Coburn, deceased, authenticated, by the oath of the jfiaintiff, was presented by him to the Orphans’ Court of Baltimore City, and passed by said Court, on or about 25th of February, 1878, and that subsequently the said claims, so authenticated and passed, and including the item now sued for, was presented by William A. Stewart, Esq., the authorized attorney of the plaintiff, to the defendant, and payment thereof demanded, on or about the 28th day of March, 1878, and that after such presentation of said claim, payment thereof was refused by the defendant,, and that subsequently, in consequence of such refusal of said.defendant, to admit and pay said claim, a suit was brought therefor, by the plaintiff, in the Baltimore City Court, on the third day of September, 1878, against George Coburn and John Coburn, then joint administrators of said Thomas Coburn, and that the said defendants in-said suit pleaded that they never were indebted as alleged; that they never promised as alleged, and if the jury shall further find that at the trial of said case the plaintiff amended the pleadings, and struck out John Coburn as one of the defendants, and prosecuted the case against George Coburn alone, and that in said case the plaintiff abandoned the item now sued for in this case, then the plaintiff is not entitled to recover, and the verdict of the jury must be for the defendant, even' although the jury may further find, that after the death of Thomas Coburn, the plaintiff delivered to John Coburn, as one of the administrators of said Thomas Coburn, the stone mentioned in the bill of particulars in this case. The Court (Gakey, J.) granted the plaintiff’s first and sixth prayers, and rejected his second, third, fourth and fifth prayers, and granted the defendant’s third, fourth and fifth prayers, and rejected his first, second and sixth prayers, and gave the following instruction of its own: “ The jury is instructed, that a disputed or rejected claim, against an estate of a. decedent, under the laws of Maryland, is a claim, which, having been duly authenticated, has been presented by the creditor, or his duly authorized agent, to the administrator for payment, and has been disputed, and payment refused, so clearly and definitely, that an ordinarily prudent man, under the circumstances of the creditor, would have notice thereby, that he could only be paid by bringing suit, and recovering judgment, against the administrator, upon the said claim.” The defendant excepted, and the verdict and judgment being against him, he appealed.