Vose v. Treat , 58 Me. 378 ( 1870 )

Appleton, C. J.

Edwin P. Treat having one-eighth interest in a policy of insurance issued by the Union Insurance Company, commenced a suit thereon, the owners of the remaining seven-eighths declining to assume any responsibility in the matter. He employed A. G. Jewett, Esq., as counsel. The suit was conducted to a successful result, and execution thereon was issued June 9, 1869.

On Jan. .13, 1868, the defendant became the owner of seven-eighths of the policy.

Mr. Jewett, after the execution was obtained, collected thereon $650, which he claimed as a just compensation for his services. The defendant was dissatisfied, but ultimately settled with Jewett upon his deducting $100, and paying him seven-eighths of that sum, and delivering him the execution.

On June 10,1869, the defendant collected the balance of the execution.

On Jan. 14, 1868, Edwin P. Treat filed liis petition to be declared a bankrupt, including in his schedule his interest in the policy in suit. An assignee was appointed. Leave was granted the assignee to sell the assets of the estate, and on April 10, 1869, the plaintiff became the purchaser, at an auction sale, of the interest of said E. P. Treat in this policy.

The defendant having collected the execution, the plaintiff called upon him for his one-eighth. The defendant said he need not sue his claim, he would pay it.

. This brief statement of uncontroverted facts shows, that the plaintiff was the owner of one-eighth of a policy, the whole amount of which had been collected by the defendant, except what had been previously paid to Mr. Jewett, and that the defendant had promised the plaintiff to pay him his share.

No reason is perceived why this promise should not be performed.

The defendant, by his settlement with Mr. Jewett, after his collection of the execution, ratified the bringing of the suit and his employment. He has received the fruits of successful litigation, and has settled with the counsel managing the cause. It is not easy to see how there could be a more complete and effectual ratification.

The defendant has neither a legal nor an equitable title to the share of Edwin P. Treat. The plaintiff has both. The promise to pay the assignee entitles him to bring the suit in his own name. Lang v. Fiske, 11 Maine, 335. Exceptions overruled.

Report of referee accepited.

Cutting, Walton, Dickerson, and Daneorth, JJ., concurred.