ÆäÀÌÁö À̹ÌÁö
PDF
ePub

MUDGE v. HAMMILL.

(Supreme Court of Rhode Island. Nov. 1, 1899.) QUITCLAIM OF A PROSPECTIVE INTERESTSPECIFIC PERFORMANCE.

Where one who has a prospective interest in land quitclaims such land to one who mortgages it to another, equity will enforce the deed and mortgage, as executory contracts to convey and mortgage, for the benefit of the mortgagee, though the mortgagor died before his grantor acquired any interest in the lands.

Bill by Margaret De W. Mudge against Mary Hammill. There was a judgment for defendant (see 43 Atl. 544), and complainant moved for a reargument. Motion denied.

Walter H. Barney and Samuel Norris, Jr., for complainant. James, Wm. R., & Theodore F. Tillinghast, for respondent.

MATTESON, C. J. The complainant concedes that the quitclaim deed from her to her brother Prescott Hall De Wolf, though invalid as a conveyance, amounted to an agreement by the complainant to convey to him whatever estate in the land she acquired on the death of her mother, or, in other words, as an executory agreement to convey the land when she should be in a position to do so. And she further concedes that the mortgage from Prescott Hall De Wolf to the respondent, though inoperative at law as a conveyance, also amounted in equity to an agreement by Prescott to mortgage the land to the respondent whenever he should acquire it. And she still further concedes that, if Prescott had survived his mother, he could have enforced the agreement against the complainant, and the respondent could have required him to enforce it for her benefit. She contends, however, that his death before either he or the complainant acquired any vested interest in the property deprived the respondent of the power of enforcing the agreement, since there is, she maintains, no privity of either estate or contract between the respondent and herself. These arguments were pressed on our attention at the original hearing, but we did not then, nor do we now, deem them availing. In Bailey v. Hoppin, 12 R. I. 560, Robert Wheaton, to whom the quitclaim deed operating as an executory agreement had been given, had died before the maker of the deed had acquired a vested interest in the estate.

But the court held that his devisee was nevertheless entitled to the benefit of the deed when its maker was in a position to give it effect. If a vendee, under an executory agreement for the conveyance of land, can transmit to his devisee the benefit of the agreement, so as to entitle his devisee to a conveyance of the land when the vendor is in position to make the conveyance, what reason exists in equity why he may not equally transmit the benefit of the agreement to his assigns by deed or mortgage? As said in Bailey v. Hoppin, 12 R. I. 569: "A court of equity does not stop * * to get itself entangled in the web of subtle refinements

which renders the law of contingent remainders so perplexing to the common-law lawyer; but, brushing them aside, it regards only the fact that the grantee of the deed has paid his money for it, and that he is therefore entitled in good conscience to have the fruit of it, though it may exist only in promise, not only conserved to him while living, but transmitted to his heirs and devisees. In equity, indeed, it is the executory contract for the future estate which is transmitted." If it is the executory contract for the future estate which is transmitted, we fail to see how the death of the party transmitting it can affect the right of his assignee to the contract to enforce it when the maker of it acquires title to the land. Motion for reargument denied and dismissed.

PAWTUCKET STEAM & GAS PIPE CO. v.
BRIGGS.

(Supreme Court of Rhode Island. Nov. 1, 1899.)
PLEADING-AFFIDAVIT OF DEFENSE-INSUF-
FICIENCY-WAIVER-JUDGMENT
BY DEFAULT-EVIDENCE.

1. Under Gen. Laws, c. 239, § 14, which provides that if plaintiff files with his declaration, in an action on account, a copy of the book entries, the defendant shall, within 10 days, if the case be in the common pleas division, or within the time fixed for filing special pleas, if in a district court, make affidavit setting out that, in his opinion, there is a valid defense, and in what said defense consists, otherwise judgment shall be entered as if the case were defaulted, if plaintiff makes no objection to an insufficient affidavit filed by defendant until the trial of the action he will be deemed to have waived his objections thereto.

2. Where, in an action on a book account, the defendant filed an affidavit that, in his opinion, there is a good and valid defense to plaintiff's suit, and that the defense consists in the terms of the contract, to which contract the plaintiff refers in the copy of the account filed, and the plaintiff, by failure to object, waived the indefiniteness of the affidavit as to the contract, it was competent to permit defendant to show that all items in dispute were included in said contract.

3. In an action on a book account, evidence that plaintiff corporation had previously made an assignment for the benefit of creditors, and that at said time it had not included the account sued on in its list of assets, is competent to show that plaintiff did not consider the claim in suit a legal one.

Action on book debt by the Pawtucket Steam & Gas Pipe Company against Hiram A. Briggs. There was a verdict in favor of plaintiff for less than he claimed, and he petitions for a new trial. Petition denied.

W. Waldo Robinson, for plaintiff. Lellan J. Tuck, for defendant.

TILLINGHAST, J. This is an action of assumpsit for book debt. It was brought in the district court of the Tenth judicial district, from which it was duly certified to the common pleas division on the plaintiff's claim for a jury trial. The defendant filed the following affidavit of valid defense in the district court, viz.: "Hiram A. Briggs, the de

[ocr errors]

fendant in the above-entitled case, being first duly sworn, on oath says that, in his opinion, there is a good and valid defense to the plaintiff's suit, and that the defense consists in the terms of the contract which the said plaintiff made with the said defendant, to which contract the said plaintiff refers in the copy of the account filed with the declaration." At the trial of the case in the common pleas division, the plaintiff moved for judgment for the full amount claimed, on the ground that said affidavit was not a compliance with Gen. Laws, c. 239, § 14, which provides, among other things, that "if the plaintiff shall file with his declaration a copy of the bill, note, bond, instrument in writing, book entries, judgment or recognizance, *** the defendant *** shall within ten days after filing of the declaration if the case be in the common pleas division, or within the time fixed for filing special pleas if in a district court, make affidavit setting out that in his opinion there is a good and valid defense and in what said defense consists; otherwise judgment shall be entered as if said case were defaulted." It appeared that no objection to the affidavit was made in the district court, and that the case had twice been assigned for trial in the common pleas division, by agreement of counsel, without any objection having been made to the sufficiency thereof. And, in view of these facts, the court ruled that the defect, if any existed, had been waived, and allowed the case to proceed. The plaintiff excepted to the ruling, and now, after verdict in its favor for a much less sum than it claims to be due, petitions for a new trial on the ground that said ruling was erroneous, and also on the ground of other alleged erroneous rulings, which will hereinafter be considered. The plaintiff also claims that the verdict is against the evidence, and that the damages awarded are inadequate.

We think the court properly ruled that any defect in the affidavit of defense was waived by not attempting to take advantage thereof until the day agreed upon for the trial of the case. The main purpose of the statute evidently is to compel the defendant, in cases of this sort, to show, prima facie at least, that he has, or believes he has, a valid defense, in part or in whole, to the plaintiff's claim, and in what that defense consists, in order that the plaintiff may not be put to the unnecessary trouble and expense of proving his claim except in so far as it is disputed; and also that he may not be taken by surprise by the setting up of a defense which he had not anticipated. Another object of the statute evidently is to narrow the issues involved in the case, as far as may be, and thus facilitate the trial thereof. But, as the filing of the affidavit of defense is mainly for the benefit of the plaintiff, it is clearly competent for him to waive any defect that may exist therein. "The doctrine of waiver," said Shaw, C. J., in Simonds v. Parker, 1 Metc. (Mass.) 511, "is

founded upon a useful and highly reasonable principle and one of very extensive application. While the law protects the rights of parties, even in minute and unimportant matters, it requires diligence and good faith in taking advantage of its rules to accomplish those ends and not to work injustice." See, also, Warren v. Glynn, 37 N. H. 340; Chew v. Griffith, 1 Ashm. 18; Almy v. Daniels, 15 R. I. 319, 320, 4 Atl. 753, and 10 Atl. 654; Massell v. Insurance Co., 19 R. I. 565, 35 Atl. 209; Metcalf v. Insurance Co., 21 R. I. —, 43 Atl. In Tingley v. City of Providence, 9 R. I. 388, this court held it to be a fixed rule of law that where an irregularity has been committed, and the party knows it, he should come, in the first instance, to avail himself of it, and not allow the other party to proceed to more expense; that "it is not reasonable afterwards to allow the party to complain of that irregularity of which, if he had availed himself at first, all that expense would have been rendered unnecessary." The case of O'Neil v. Rupp, 22 Pa. St. 395, is clearly in point. Under a general rule of the court, it was provided that, "in all actions of debt or assumpsit, when the plaintiff shall file with his præcipe an affidavit stating the amount verily believed to be due from the defendant, he shall be entitled to judgment as for want of appearance, unless defendant shall file an affidavit of defense with his appearance." Five months after the affidavit was filedthe plaintiff meanwhile having obtained an order upon the defendant to plead, and a rule also having been entered to arbitrate-the plaintiff obtained a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense, which rule, upon consideration, was by the court below made absolute, and judgment was entered for plaintiff by default. In reversing this decision, the supreme court, by Knox, J., said: "It is unnecessary to determine whether the affidavit did not disclose a valid defense to the plaintiff's demand, as we are of the opinion that the objection to its sufficiency was not raised in time. A party who intends to ask for judgment for the reason that the affidavit of defense is deficient must do so before he has taken any steps in the cause, subsequent to the affidavit, calculated to mislead his opponent. * The plaintiff had his election either to treat the affidavit of defense as sufficient, and to take the ordinary course to bring his cause on for trial, or to test the validity of the affidavit by entering a rule for judgment. It would seem that he adopted the first branch of this proposition; for on the 16th day of April, 1853, a rule was taken upon the defendant to plead, and two days afterwards a rule was entered to arbitrate, which last rule was, on the 24th of May, stricken off, at the plaintiff's instance and costs. After these steps had been taken, and five months after the affidavit had been filed, the plaintiff obtained a rule for judgment, which was made absolute, upon the

ground that the affidavit was defective in not setting forth a defense that would be effectual in law. It may be said that a defendant is not injured by reason of delay in taking judgment; but of this we cannot be certain. It was fair for him to presume that his case would be investigated in open court, and tried in the usual method, and a prudent man would have provided the means necessary to make good his defense. This would require an expenditure of time and money; besides which, delay is generally injurious, even to the losing party. There is no hardship in holding that a plaintiff may waive his right to question the sufficiency of an affidavit of defense, and we think this case a proper one to apply the rule that he may do so." The case of West v. Darcy, 20 R. I. 311, 38 Atl. 945, relied on by plaintiff, does not control the case at bar, as there no affidavit of defense was filed, and in such case the statute provides that judgment shall be entered as by default. Conceding, then, that the affidavit in question was defective (as we think it was), the plaintiff's motion for judgment came too late, for the reasons given.

But the plaintiff contends that, even though there was a waiver of the defect in said affidavit, the defendant had no right to dispute any of the items in the account filed with the declaration, except those included in the "contract" referred to in the affidavit; that is, that the defense should have been limited to what was set up in the affidavit. Whether this contention is tenable we are not now called upon to decide, as the record shows that all of the evidence offered by the defendant related to items which he claims were included in said contract, and that as to the other items he made no defense. As the plaintiff had waived the defect in the affidavit,-which consisted in its indefiniteness as to the terms of the "contract" referred to, and also in its failure to set out wherein it had been violated by the plaintiff,-we think it was competent for the court to permit the defendant to show that all of the items in dispute were included in said "contract."

An examination of the cases relied on by plaintiff's counsel shows that they are mainly cases where the sufficiency of the affidavit has arisen on motion for judgment as by default for want of a sufficient affidavit of defense. Such was the case in Marsh v. Marshall, 53 Pa. St. 396; American Electric Const. Co. v. Consumers' Gas Co. (C. C.) 47 Fed. 43; Reed v. Raymond (C. C.) 37 Fed. 186; Kaufman v. Mining Co., 105 Pa. St. 537; Knerr v. Bradley, Id. 190; Burke v. Adams, Id. 151; Bryar v. Harrison, 37 Pa. St. 233. As the question before us is one of waiver of the insufficiency of the affidavit of defense, these cases are not controlling. See Brick Co. v. Dube, 19 R. I. 397, 37 Atl. 14, as to an affidavit which was held sufficient.

During the trial of the case the defendant was allowed, over the plaintiff's exception, to ask if the plaintiff corporation had previ

ously made an assignment for the benefit of its creditors, and also whether, in the statement of its assets made at that time, which was in 1895, it had included the claim in suit. This testimony was offered for the purpose of showing that the plaintiff at the time of the assignment did not consider the claim, which it appears was an old one, as an asset of the corporation. We think the testimony was competent, as tending to show that plaintiff did not consider that the claim in suit was a legal one.

In view of the conflict of testimony as to the terms of the contract for the putting in of the heating apparatus and as to what the contract included, we cannot say that the verdict was clearly against the evidence, or that the damages assessed are inadequate. Petition for new trial denied, and case remitted to the common pleas division, with direction to enter judgment on the verdict.

LANE v. HILL.

(Supreme Court of New Hampshire. Rocking ham. March 13, 1896.) WILLS-APPEAL-MOTION TO DISMISS FOR INSUFFICIENCY OF REASON OF APPEAL-NATURE OF REASON OF APPEAL-SUFFICIENCY OF QUESTIONS OF FACT.

1. A motion to dismiss an appeal from a decree probating a will, for insufficiency of the ground of appeal, being in the nature of a demurrer, admits all facts stated in the reason of appeal.

2. A reason of appeal from a decree probating a will, as follows, "Because said instrument was not the last will and testament of said deceased," is, in effect, a denial that the instrument was in fact a will, and constitutes a legally sufficient reason.

3. Where a legal reason is assigned for appeal from a decree probating a will, further reasons for the correctness of the reason assigned need not be alleged, nor need the grounds or evidence by which the contention is proposed to be established be stated.

4. Where the whole question of the validity of a will is brought to the supreme court by the reason of appeal, any disputed question of fact, the decision of which is material to the question, may be determined by a jury.

5. The issue of revocation of a will tendered by the reason of appeal presents a question of fact to be determined by a jury.

6. An appeal from the probate court is not limited to errors of fact made by that tribunal, but mistakes of law are equally revisable in the supreme court, and hence a statement that embraces both matter of fact and matter of law, though improper as an issue to the jury, is not objectionable as a reason of appeal.

Appeal from probate court, Rockingham county.

Issue on appeal from probate of a certain instrument as the last will and testament of George W. Lane, deceased, between Lane, executrix, and Hill. Case discharged.

The first reason assigned for the appeal is, "Because said instrument was not the last will and testament of said deceased." Four other reasons were assigned, two of which were abandoned, and issues framed under the others were found by a jury in favor of the ex

ecutor. The appellant tenders the following issue under the first reason of appeal: "That said instrument ought not to be approved and allowed as the last will and testament of George W. Lane, because she says that since the making and execution thereof the said George W. Lane in his lifetime revoked the same by making and duly executing another will, the provisions of which are inconsistent therewith and intended to revoke the same." The executrix moves that the first reason of appeal be dismissed, and for judgment affirming the decree of the probate court, because, (1) the second and third reasons of appeal having been abandoned, and the fourth and fifth determined in favor of the plaintiff by the verdict of the jury, no further reason of appeal is alleged upon which an issue can be framed; (2) admitting, as claimed by the appellant, that a subsequent will was made by the deceased, no error is pointed out in the decision of the judge of probate, and no reason assigned why the probate of the will should not stand; (3) the first alleged reason is too loose, vague, and general, and amounts to nothing more than that the result is wrong; and (4) it affords the plaintiff no information of the error complained of, and nothing on which to prepare for trial. The appellant moves for leave to amend the first reason of appeal by adding thereto, "because, since the making and execution thereof, the said George W. Lane, in his lifetime, revoked the same by making and duly executing another will, the provisions of which are inconsistent therewith and intended to revoke the same." The issue of revocation was intended to be raised by the first reason of appeal.

Greenleaf K. Bartlett and Henry B. Atherton, for plaintiff. Eastman, Young & O'Neill, for defendant.

PARSONS, J. The only reason now undisposed of, assigned by the appellant for her appeal from the decree of the probate court approving and allowing the will whose validity is in dispute, is, "because said instrument was not the last will and testament of said deceased." The appellee moves to dismiss the remaining reason of appeal and for judgment. This motion is, in effect, a motion to dismiss the appeal for insufficiency in the reason assigned, and is in the nature of a demurrer, and admits all facts stated in the reason of appeal. Eastman v. Barnes, 62 N. H. 630, 631; Doughty v. Little, 61 N. H. 365, 366; Waldron v. Woodman, 58 N. H. 15. The appellant claims that this allegation means that the instrument admitted to probate was not the will of the deceased. If the probate court has allowed as the will of the deceased an instrument which is not in fact his will, that fact would seem to constitute a sufficient reason why the decree of the probate court should be reversed. But the appellee claims that the reason is simply a statement that, as matter of fact, the instrument probated is not

the last paper executed by the deceased as a will, and that, from the admission of this fact by demurrer, no conclusion of law necessarily follows that this instrument was not entitled to probate as a will. If the appellant is to be held to the strict rules of pleading contended for by the appellee, it is manifest that the objection goes to the method of statement employed by the appellant, and not to the substance of the grievance complained of. Whether, despite the previous contrary holding (Patrick v. Cowles, 45 N. H. 553, 554; Rowell v. Conner, 57 N. H. 323, 324), and contrary to the repeated adjudications that upon an appeal from the probate court the only questions that can be considered by this court are the grievances specified in the reasons of appeal (Bean v. Burleigh, 4 N. H. 550; Mathes v. Bennett, 21 N. H. 188, 200, 201; Hatch v. Purcell, Id. 544, 550; Twitchell v. Smith, 35 N. H. 48, 50; Patrick v. Cowles, 45 N. H. 553; Caswell v. Hill, 47 N. H. 407, 408; Dodge v. Stickney, 60 N. H. 461; Simmons v. Goodell, 63 N. H. 458, 460, 2 Atl. 897; Boynton v. Dyer, 18 Pick. 1; Slack v. Slack, 123 Mass. 443; Murphy v. Walker, 131 Mass. 341), under the present state of the law an amendment to a probate appeal, introducing a new and distinct grievance,-a new reason for appeal not stated in any form in the original reasons, is now allowable, if necessary for the prevention of gross injustice (Pub. St. c. 222, § 8), it is not now necessary to determine; for the objection of the appellee now under consideration is to form, not substance. and so far, at least, as method of statement is concerned, the reasons of appeal must be considered pleading and amendable. The substance of the appellant's grievance is the admission to probate of an instrument not in law entitled to probate for the reason assigned, that it was not the testator's will. According to the authorities cited (Patrick v. Cowles and Rowell v. Conner, supra), a defective statement of grievance can be amended if no new ground or grievance is added by the amendment. If an amendment is necessary to obviate the objection, it may be made by striking out the word "last." It is certainly at least questionable whether any amendment is necessary. Though, in common phrase, any paper executed in testamentary form is called a "will," in a legal sense the testator's will is a paper executed and existing under such circumstances as entitle it to probate. In this sense, the word "last" adds nothing, and the phrase used in the appeal is a denial that the instrument was in fact a will.

The appellee further objects that the reason is too indefinite and general in effect; that it does not set out the grounds, views, or evidence upon which the appellant claims the instrument is not the testator's will. This is unnecessary. The reason is sufficient if it shows error in the decree which, if established, will entitle the appellant to a reversal. Eastman v. Barnes, Doughty v. Little, Wal

dron v. Woodman, cited supra. "The appellant is not confined to the same arguments, views, or evidence which were presented before the probate court." Boynton v. Dyer, 18 Pick. 1. "There is nothing in Bean v. Burleigh which gives countenance to the position that the petitioner is required to set out his reasons in the nature of an argument against the decree, or to go into particular circumstances on which he may rely in evidence." Holt v. Smart, 46 N. H. 9-11. "The appellant is at liberty to state as many reasons as he chooses, and to bring into litigation every part of the proceedings in the court below." Bean v. Burleigh, 4 N. H. 550, 553. The correctness of the conclusion of the probate court depended upon various findings of fact and law. If the appellant was satisfied with the findings of the probate court upon a portion of the questions embraced in the judgment, she might have limited her appeal by specifying in her reasons the findings upon such points only as seemed to her objectionable, as insanity in the testator, nonexecution, undue influence, or revocation, but she was not obliged to limit her appeal to a portion of the matters embraced in the judgment. After giving a legal reason for error in the judgment, she was not called on to allege further reasons for the correctness of the reason assigned, or to state the grounds or evidence by which she proposed to establish her contention. Having assigned a sufficient reason, that the instrument probated was not the testator's will,-she was not compelled to go further, and assign as a foundation for that reason some other sufficient reason, as nonexecution, insanity, or revocation. If she had alleged a revocation, she would not have been compelled to go further, and state whether she claimed a revocation by express act, by burning, tearing, by execution of another will, or to state the evidence by which she proposed to establish her contention; nor, if she alleged nonexecution, would she have been obliged to set out the particulars in which she claimed the execution defective; nor would an allegation of duress, fraud, or undue influence have compelled her to allege the details of the charge made. The only obligation upon her was to state a legally sufficient reason, which she has done.

The whole question of the validity of the will being brought to this court by the reason of appeal, any disputed question of fact, the decision of which is material to the question, may be determined by a jury. The issue of revocation tendered presents such a question, and should be allowed. If the reason is too indefinite, the objection may be met by requiring a specification of the appellant. Rowell v. Conner, 57 N. H. 323. In an appeal of this nature, the issues tendered, in effect, amount to such a specification. While a jury can pass only upon matters of fact, an appeal from the probate court is not limited to errors of fact made by that tribunal, but mis

takes of law are equally revisable here; hence a statement that embraces both matter of fact and matter of law, though improper as an issue to the jury (Lane v. Hill, 68 N. H. 275, 44 Atl. 393), is not objectionable as a reason of appeal. Case discharged. All concurred.

MALTAIS v. FOSS.

(Supreme Court of New Hampshire. Belknap. March 13, 1896.)

CONTRACTS-MISTAKE IN PERFORMANCE-ACCEPTING BENEFITS.

Where plaintiff agreed to cut lumber and bark for defendant on his lands at a certain price per cord, and by mistake a part cut was on the land of another, but was taken possession of by defendant, the plaintiff is entitled to payment therefor.

Exceptions from Belknap county.

Assumpsit by Eli Maltais against Oscar F. Foss for cutting lumber. To denial of his motion for nonsuit, defendant excepts. Judgment on verdict for plaintiff.

Assumpsit for cutting lumber and peeling bark. Trial by jury. Verdict for the plaintiff. By an agreement in writing the plaintiff was to peel all the hemlock bark standing on the Tuttle farm, in Lincoln, that the defendant might require, and receive therefor $1.872 per cord. The plaintiff's evidence tended to prove the following facts: The plaintiff cut and peeled 420 cords of bark. The defendant paid him for 333 cords, and refused to pay for the balance, on the ground that it was cut on land of an adjoining owner. The plaintiff supposed he was cutting on the Tuttle farm, but he did in fact cut lumber producing 87 cords of bark on other land. The defendant did not point out the lines, nor did the plaintiff request him to do No one had demanded damages of the plaintiff for the trespass. The defendant had the lumber and bark for the cutting of which suit was brought. The defendant excepted to the denial of his motion for a nonsuit.

Frank M. Beckford and Edwin H. Shannon, for plaintiff. Jewell, Stone, Owen & Martin, for defendant.

CLARK, J. The only question is whether there was error in the denial of the motion for a nonsuit. The plaintiff's evidence tended to show that "the defendant had the lumber and bark for the cutting of which suit was brought." From this the jury could properly infer that the defendant accepted and took the benefit of the plaintiff's labor at the agreed price, or at its value, if, as the plaintiff in his brief asserts, there was a quantum meruit count. Judgment on the verdict.

PARSONS, J., did not sit. The others concurred.

« ÀÌÀü°è¼Ó »