Francis Chambers vs. Silas W. Robbins.
A plaintiff may assign in the same count several breaches of the same contract, and the count is sufficient if any one of them is well assigned.
A declaration alleged a promise of the defendant, upon the settlement of a certain suit pending between him and the plaintiff, to cause an entry of the discontinuance of the case to be made upon the docket, to abstain from any further proceedings in the suit, and to pay to the plaintiff the costs of the case, amounting to $112; and alleged that the defendant had never caused the entry to be made, and had never paid the $112, though a reasonable time had elapsed, and though he was often requested, but had, after-wards, without the knowledge of the plaintiff, proceeded and taken judgment in the suit. Held that the declaration was not insufficient in not alleging that the $112 was to be paid in a reasonable time, inasmuch as a sufficient breach of the promise to cause the entry to be made, and to abstain from further proceedings in the case, was alleged in the [ *545 ] *allegation that the defendant had never caused the entry to be made, but had proceeded and taken judgment in the suit.
Held also that the latter breach was well assigned, although no time was stated in the declaration within which the defendant was to cause the entry of the .discontinuance to be made, since it was alleged, not only that he had not done what he promised, but had done that which was wholly inconsistent with and rendered impracticable the performance of his promise.
*445Where an administrator with the will annexed, was, as such, made a party to an appeal from the probate of the will, and the suit was settled upon an. agreement of the administrator that he would pay the costs of the suit to the appellant, it was held that the liability to these costs was one which rested on the administrator personally and not upon the estate, and that therefore his promise to pa,y them need not, under the statute of frauds, be in writing.
An estate is not holden for liabilities incurred by an administrator in the settlement of the estate, although the administrator may have the right to charge to the estate the money paid out by him upon such liabilities.
Assumpsit. The declaration alleged that Mary Robbins, late of Rocky Hill, in Hartford county, in her life time made her last will and testament, whereby she devised and bequeathed to the defendant, as trustee of Richard Robbins, and to others, a large amount of property, real and personal; that after her death the will was presented to the court of probate for the district of Hartford for probate, and on the 21st of May, 1855, was by said court approved, and administration, with the will annexed, granted to the defendant; that the plaintifF, after-wards, on the 26th of May, 1855, together with David A. Mills and Martha G. his wife, of said Rocky Hill, they being heirs at law of the deceased, appealed from said judgment of the probate court, to the superior court then next to be holden at Hartford, on the 4th Tuesday of September, 1855 ; that the appeal was duly entered in the superior court, at its next term, when the appellants and the present defendant appeared and answered to the cause; that it came by regular continuances to the March term, in the year 1856, when the said David A. and Martha G. withdrew from the cause; that it afterwards by regular continuances came to the September term, in the year 1857, the plaintiff and the defendant therein appearing; that afterwards, during the last mentioned term, to wit, on the 26th day of October, 1857, the defendant, in consideration that the plaintiff, at the special instance and request of the defendant, had consented to and agreed with the defendant that the cause should *be entered “ done ” in the docket of the court, [ *546 ] undertook and faithfully promised the plaintiff that he, the defendant, would consent to, and cause and procure the entry aforesaid to be made in the docket of the court, and that the cause should thereafter be ended and done, and no further proceedings be had therein, and would pay, within a certain time thereafter, the costs in said cause, amounting to the sum §112. Yet that the defendant, his promise and undertaking *446aforesaid not regarding,'had never performed the same, and did not consent to, nor cause or procure said entry to be made, and the pi-oceedings in said cause to cease, lior had he paid said $112, though a reasonable time had elapsed, and though often demanded, but did afterwards, in the absence and without the knowledge of the plaintiff, recover a judgment in the cause against the plaintiff.
There was a second count which, after averring the pendencyin the superior court of the appeal from the’ probate of the will of Mary Robbins, and the accruing of costs therein to' the amount of $112, concluded as follows :—And the plaintiff says that the defendant, afterwards, to wit, on the 25th day of October, 1857, in consideration that the plaintiff, at the special instance and request of the defendant, had consented to and agreed with the defendant not to prosecute said last mentioned appeal farther, and that the same might be entered “ done ” in the docket of said court, undertook and faithfully promised the plaintiff that he, the defendant, would, within a reasonable time thereafter, pay to the plaintiff said last mentioned costs, when thereto afterwards requested; but the defendant, his said last mentioned promise aforesaid not regarding, has never performed the same, though often requested and demanded.
The defendant pleaded the general issue, which was closed to the court. Oil the trial the plaintiff introduced parol evidence tending to prove such of the allegations of the decla- [ *547 ] ration *as were not matters of record, and in connection therewith, the following writing signed by the parties:
“ Mills’ Appeal, Superior Court, October term, 1857.
The above case has been settled by the parties, and is to be entered ‘ done.’ Francis Chambers,
S. W. Robbins, Administrator.”
This -writing had. reference to the cause mentioned in the declaration as having been pending in the superior court for Hartford county, at the October term of which in 1857 it was claimed by the plaintiff to have been settled, in the manner alleged. The defendant objected to the admission of parol evidence to prove the allegations referred to, on the ground that they could not be proved by parol; but the court admitted the same, subject to the opinion of this court; and if the court should hold the same admissible, found the allegations of the declaration to be proved and true, and assessed the plaintiff’s damages at the sum of one hundred dollars.
The’ defendant’s counsel claimed on the' argument, that both counts of the declaration were sufficient in law to authorize the *447court to render any judgment thereon in the plaintiff’s favor, whereupon the question in respect to the admissibility of the evidence, and as to the sufficiency of the declaration, and as to what judgment should be rendered thereon, were reserved for the advice of this court.
Sturges, with whom was Treat, for the plaintiff.
1. The parol evidence of the promise of the defendant was admissible. It was not a promise to pay a debt of the estate, but the duty rested upon him in his individual capacitjr, and the promise was made by him wholly in that capacity. Although he might have a right to chárge the estate for the amount which he should pay, vet the debt was none the less his own private debt. Pratt v. Humphrey, 22 Conn., 317. Taylor v. Mygatt, 26 id., 184. 1 Swift Dig., 251.
2. The declaration is sufficient. The case stands as it would upon a motion in arrest after verdict. All mere formal defects are healed. If either count is good it is enough. It is said that,, in the second count, it is not alleged that a reasonable time had elapsed. But the,court can see whether a reasonable *time has elapsed. It is never necessary to call proof [ *548 ] on the subject., 1 Saund. R., 228, note, 1. Canfield v. Merrick, 11 Conn., 425. But the first count is good, even if the word certain'is used in the original in describing the time -within .which the promise was to be pei'formed. If any part of the promise is legally alleged, with a breach of such part, the damages assessed will be presumed to have been assessed on that part of the count. If then the promise to pay the costs, to which alone the állegátion as to the time applies, is insufficiently alleged, yet the promise to cause the entry of the settlement of' the case to be made on the docket, and that no further proceedings should be had in the suit, is sufficiently alleged, and the breach of this promise is sufficiently stated, in the allegation that the defendant had never caused' this entry to be made, and had, without the knowledge of the • plaintiff, taken a judgment in' the suit. It is claimed that the consideration of the defendant’s promise in each of the counts isa past one—viz., that the plaintiff “ had consented to and agreed with the defendant ” that the cause should be discontinued—and that suclv a consideration is not a valid one, although it is alleged that the plaintiff had so agreed “ at the special instance and request of the defendant.” But this agreement of the plaintiff at the request of the defendant, created a subsisting legal obligation on the part of the defendant to do what he has promised to do, and such a subsisting obligation is always a válid consideration for a *448promise. Powley v. Walker, 5 T. R., 373. Vernam v. Smith, 15 N. Y., 327. Spencer v. Ballou, 4 id., 327. The word “agreed” implies a consideration. It is the language of both parties, and is equivalent to the expression that the parties mutually promised. Elderton v. Emmens, 6 M. G. & S., 175. Com. Dig., “Action on Case, Assumpsit B., 12. Payne v. Wilson, 7 Barn. & Cress., 423. Pordage v. Cole, 1 Saund., 319 d. Andrews v. Pontue, 24 Wend., 285. Bainbridge v. Firmstone, 8 Ad. & El., 743.
M. Wells and Taylor, for the defendant.
1. Parol evidence was not admissible to charge the [ *549 ] defendant *in his individual capacity. The statute of frauds requires that such a promise shall be in writing. The declaration and the proof show the suit which was settled to have been „a proceeding with which the defendant was connected only as administrator, and not in any manner in his individual capacity. The written agreement for the discontinuance of the suit was signed by him as administrator. And the costs that accrued in the suit, accrued either against him or in his favor, only as administrator. The proof, which only showed a promise in his character as administrator, was further inadmissible as not supporting the allegation of the declaration, that he had made the promise in his individual capacity. And there was no consideration for his promise in that capacity. An advantage to the defendant in one capacity would be no consideration for his promise to another. Forth v. Stanton, 1 Saund., 210. 1 Swift Dig., 251, 2.
2. The declaration is insufficient. In the first count the promises alleged are to cause the appeal to be entered as discontinued, averring no time within which it was to be done, and to pay the $112 costs within a certain time. The breach alleged is, that the defendant did not do this within a reasonable time, which is not a breach of the alleged promise. In the second count the. promise alleged is to do the acts in a reasonable time, when thereto requested, but it is not averred that a reasonable time had elapsed. Page v. Bacon, 1 Conn., 404. Canfield v. Merrick, 11 id., 425. Newell v. Roberts, 13 id., 417. Dale v. Dean, 16 id., 579. Osborne v. Lawrence, 9 Wend., 135. The consideration for the defendant’s promise is alleged as a past consideration. Such a consideration is not sufficient. The past discontinuance of the suit, even at the request of the defendant, imposed no duty on the defendant, and there was therefore no subsisting duty to be the ground of the promise. The word “ agreement,” we admit, is held in England *449to import a consideration, but it has never been so held here. The decision in the leading case of Wain v. Walters has never been followed in this state. The defects of the declaration are not merely formal, but would be fatal on general demurrer, and so are not healed by verdict.
*Hinman, J.
The question .whether parol evidence [ *550 J was admissible to prove the promise declared on, will perhaps be more readily understood when stated in another form, as a question whether the promise itself was within the statute of frauds, and therefore should have been in writing. Clearly it is not within the statute, unless it was a promise, as executor, to answer damages out of his own estate. But the. promise was made in the defendant’s private capacity, and was itself the foundation of his liability in this action ; and so far as the costs in the action that had been pending constituted the basis of his liability, they accrued against him personally, and not against the estate. -Whether he would have a right to charge them to the estate, when paid, is unimportant. Most of the personal obligations of an executor, contracted in the course of his administration, are proper charges against the estate in the final settlement of his account, but they are none the less his private debts, for which he is alone liable in his private capacity. There is no more reason for saying that the promise set up in this case is within the statute, than there is for saying that the services of a laborer, or of an attorney, which may be required in the course of the settlement of an estate, must be contracted for in writing, or the statute will preclude any recovery for them against the executor. We have no doubt, therefore, that the parol evidence was proper to prove the promise. Pratt v. Humphrey, 22 Conn., 317. Taylor v. Mygatt, 26 id., 184.
The two counts of the declaration are claimed to be both defective, in not alleging a breach of the contract declared on. It is said that no time is stated in the first count, when, or within which, the probate appeal was to be entered “done” and be ended; and that the promise to pay is stated to be “ at a certain time,” without specifying it; and that in the second count, the reasonable time within which the acts were promised to be done, is not alleged to have elapsed. The plaintiff is entitled to judgment if he has one good count which he has proved. It is only necessary therefore to examine so far as to see that one of the counts *is good; and as we think the first [ *551 ] a good one, our remarks will be confined to that. The word “ certain,” as printed in the copy, is obviously a mis*450take. The whole frame of the count shows it to be so ; and no pleader at the present time is ignorant of the rule of law that requires the time when, or within which, an act is to be performed, to be stated with reasonable distinctness and precision. But, upon examining the original”, we find it in such a state that it is not now possible, without resorting to conjecture, to determine what word was intended to be used. It must therefore be taken as if the word was left a blank, 'which will leave the declaration, so far as the promise to pay money is concerned, as declaring upon the promise, without alleging any time w'hen it was to be paid; which is undoubtedly a fatal defect in respect to this particular promise. It is, however, to be observed, that the payment of money was not the only or indeed the principal thing which the defendant promised to do. The count alleges that, “ in consideration that the" plaintiff had consented and agreed with the defendant that the said cause should be entered “ done ” in the docket, the defendant undertook and faithfully promised, that he the defendant would consent to, and cause and procure the entry aforesaid to be made in the docket of said court, and that said cause should thereafter be ended and done, and no further proceedings be had therein, and would pay, &c. within a • time, the costs of said cause, amounting,” &c.
Now, in respect to the promise to consent to and procure a discontinuance of the case then pending, in consideration that the plaintiff had consented thereto, a clear breach of that promise is alleged, since it is alleged that the defendant did not consent to, nor cause said entry to be made, and the proceedings in said cause to cease, though a l’easonable time had elapsed, and though often requested and demanded, but did afterwards, in the absence and without the knowledge of "the plaintiff, recover a judgment against the plaintiff &c. Here is both an allegation that he neglected to do in a reasonable time what he had [ *552 ] expressly promised to do—*procnre a discontinuance of the cause—and also a direct allegation that he had done that which was so wholly inconsistent with the performance of the act promised, that it placed it wholly out of his power to perform it. This we think a sufficient allegation of a breach, irrespective of what is said as to the payment of the money ; and as it is a rule of pleading that a plaintiff may assign several breaches of the same contract, aiid if some are properly assigned and some are not, the action may be maintained for such as are well assigned, it follows that the declaration is a good one for the purpose of a recovery upon the breach which is well assigned. And the only question which can arise being as to the sufficiency *451of the declaration, the advice to the superior court must be that it is sufficient, and that judgment be rendered thereon for the plaintiff.
In this opinion the other judges concurred.
Judgment for plaintiff advised.