Merritt v. Seaman , 6 Barb. 330 ( 1849 )

By the Court, Parker, J.

The plaintiff had a right to sue on the note in question in his own name, or as executor of John Sampson deceased. (Mercein v. Smith, 2 Hill, 210. Colby v. Colby, 2 New Hamp. Rep. 420. Biddle v. Wilkins, 1 Peters, 686. Mowry v. Adams, 14 Mass. Rep. 327.) In the latter case Chief Justice Parker says, “ It is now settled that when a contract is made with an executor or administrator personally, after the death of the testator or intestate, or where money is received by the person sued, after the death ; in such cases the executor or administrator may sue either in his own name or as executor or administrator.” He brought the suit as executor; and it is provided by statute, (2 R. S. 2d ed. 278, § 38,) that whenever a set-off is established in a suit brought by executors or administrators, the judgment shall be against them in their representative character, and shall be evidence of a debt established to be paid in the course of administration. This provision extends to ail suits brought by executors iu which a set-off is established, including suits that might also have been instituted in the name of the executor personally. But it is contended that the set-off was improperly allowed by the referee. The rule is undoubtedly well established, that in a suit by an executor or administrator, upon a cause of action which arose after the death of the testator or intestate, the defendant can not set off a demand against the testator or intestate, even though it existed at the time of his death. (Dole v. Cook, 4 John. Ch. 13. Root v. Taylor, 20 John. 13. Fry v. Evans, 8 Wend. 530. Mercein v. Smith, 8 Id. 210.) The reason given is, that as the law existed previous to the revised statutes, a defendant, by such a set-off might compel the payment of a simple contract debt in preference to a judgment or bond debt. And since the revised statutes, such a set-off might, if the estate should prove insolvent, prevent a pro rata distribution. Such would be its effect where a suit is brought by an executor, as such, to recover money received by a defendant since the death of his testator and belonging to his estate. If in such case the defendant is at liberty to set off a debt due him from the testator at the time of his death, he might succeed in obtaining payment of all his demand when there were not sufficient assets to pay all the creditors. The consequence would be the same if a defendant were allowed to set off his claim against the estate, in a suit brought against him to recover money belonging to the estate, loaned to him by the executor.

The statute, in its terms, (2 R. S. 2d ed. 279, § 37,) seems to be broad enough to admit a set-off in all suits brought by executors and administrators: but the construction that has been given to it by the courts is now too well settled to be questioned, and is clearly necessary, as well since as before the revised statutes, to give effect to the policy of the law in regard to the distribution of estates.

The objections above stated might not however apply to the note in question; for although it was made after the death of the testator, it was given only for a balance due the estate. The transaction was no more in fact than a liquidation of a demand due the estate, and a promise to pay the balance. If this suit had been brought on the original demand for which this note was given, the right of set-off could not be questioned. But this view of the case does not relieve the defendants from difficulty. They consented to give the note in question in such a form as would have entitled the plaintiff to sue on it in his own name; and it will not be pretended that if he had done so, the defendants could have made the set-off. The plaintiff did not do so, but he chose to sue on it as executor, and to put in issue only promises made to himself as executor, and by his notice subjoined to his declaration to make the note in question his only cause of action. I think, therefore, the plaintiff had a right to object on the hearing to the allowance of the set-off, on the ground that the cause of action, in the form given to it by the consent of parties, arose after the death of the testator.

The next question to be considered is, whether the objection to the admission of the set-off was properly made. The objection to the admissibility of evidence in support of the set-off was 11 that such proof was incompetent under the circumstances of the caseIt could not have been made in more general language; and it is now urged that the ground of the objection should have been specifically stated, to entitle the plaintiff to avail himself of it on this application.

It is a salutary rule, and applicable as well to cases as bills of exception, that a party shall not be permitted, on a motion for a new trial, to avail himself of an objection made on the trial, unless the ground of objection was so particularly stated as to enable the opposite party to supply, if possible, the alledged defect. (Van Gordon v. Jackson, 5 John. 467. Frier v. Jackson, 8 Id. 507. Jackson v. Caldwell, 1 Cowen, 622. Hunter v. Trustees of Sandy Hill, 6 Hill, 407. Willard v. Warren, 17 Wend. 257. Thurman v. Cameron, 24 Id. 87. Ryerss v. Wheeler, 25 Id. 437. People v. Bodine, 1 Denio, 281. Williams v. Larkin, 3 Id. 114. Gillett v. Campbell, 1 Id. 520. Underhill v. Pomeroy, 2 Hill, 603.) It is due to the party offering the evidence that he should understand distinctly the ground of objection. He may choose to acquiesce in its correctness and withhold the evidence. He may introduce other-equivalent evidence, not liable to the objection. If it be on the ground of a defective pleading, he may perhaps obtain leave to amend. If the objection go to the entire exclusion of a demand offered by way of set-off, he may withdraw it and bring a cross action. It is equally due to the tribunal before which the trial is had, that the ground of objection should, in all cases, be frankly and specifically stated. The court and party have a right to suppose that a ground of objection, not thus pointed out, is waived. There has been no disposition evinced by the courts to relax this rule, and I think justice and public policy require that it should be rigidly adhered to. The case of Underhill v. Pomeroy, above cited, was an action brought to recover for services performed under an agreement that they should be paid for in goods ; and the declaration contained only the common money counts. On the hearing before the referees, the defendant objected, “ that the proof did not sustain the declaration, and that upon the testimony the plaintiff was not entitled to recoverP It was held this objection was too general to raise the question whether the plaintiff could recover -without declaring specially. This case was affirmed on error in the late court for the correction of errors, and so far as I can gather from the briefly reported opinions of senators, I think the decision is placed on the same ground as in the supreme court.

There, as in this case, it might not have been in the power of the party to obviate the objection on the trial, if it had been specifically made. But a knowledge of the true ground of objection, if it was deemed to be well taken, might have enabled him to take such steps as would have secured himself against loss. In the case we are considering, the demands sought to be set off, if rejected, are now barred by the statute of limitations. If the true ground of objection had been frankly stated, at the trial, the defendants might have withdrawn their set-off, and have saved their demands by bringing a cross action. I think, on the whole, it is fair to say that the objection was too general, and that the plaintiff can not now, for the first time, avail himself of a ground for excluding the defence, not pointed out on the trial.

At another stage of the trial, the plaintiff objected to the evidence tending to charge the plaintiff with commissions, on the ground that accounts had previously been rendered by the defendants which had been settled and paid by the testator. This objection was not well taken. Such previous accounts were for disbursements only, and their payment furnished no presumption that the services performed were not also to be paid for. (Pringle v. Clenahan, 1 Dallas, 486.)

The objection to the introduction of the testator’s letters to John F. Seaman was equally untenable. The written declarations of the testator, no matter to whom made, were clearly admissible so far as they referred to the matters in controversy; and it was a question of fact for the referee to settle, on all the evidence, whether the services sought to be set off were rendered by John F. Seaman alone, or by all the defendants. Nor does the giving of the note raise any presumption against the defendants’ set-off; it being proved that the parties agreed, when the note was given, that it should not prejudice the defendants’ claim.

It is unnecessary to examine fully the other less important exceptions taken by the plaintiff on the trial, or the questions of fact decided by the referee. The points now made by the plaintiff can not be sustained, and the motion to set aside the report of the referee must therefore be denied.

Harris, J. concurred.

Wright, P. J. dissented. Motion denied.