Opinion
07-18-1872
JAMES & als. v. JOHNSTON.
Hansbrough, for the appellants. J. W. Johnston, for the appelle.
1. In suit upon a bond given by M and others to the person who was administrator of the estate of their intestate, for the amount due him upon a settlement, they cannot setoff moneys subsequently received by him as administrator, the claims not being in the same character.
2. Though the administrator has made a statement of assets received and payments made by him since the bond was given, and finding a balance of the estate in his hands, endorses it as a credit on the bond, yet as the obligors do not acquiesce in that statement, they are not to be allowed the credit endorsed, but the balance due by the administrator must be ascertianed by a correct settlement of his administration account.
3. The bond bears date on the 14th of May 1863, and is payable on demand, and the balance found due to the administrator at that date is almost wholly made up of his commissions on receipts and disbursements prior to the 15th of November 1862. The bond having been given with reference to Confederate States treasury notes as a standard of value, is to be scaled as of its date.
This was an action of debt in the Circuit court of Roanoke county, brought in November 1869, by Frederick Johnston against Mary A. James and others, the widow and children of Fleming James, deceased, to recover the amount of a bond for three thousand five hundred and twenty-five dollars and twenty-two cents, bearing date the 14th of May 1863. The defendants appeared and filed the plea of payment, on which issue was joined; and they filed an account of setoff.
When the case was called the parties dispensed with a jury, and submitted the whole case to the judgment of the court.
The plaintiff had been the administrator of Fleming James, who died in April or May 1862. He had sold the personal and, under a decree of the court, a part of the real estate, and had collected the outstanding debts, all being received in Confederate money, and he had paid off many of the debts, which were generally antewar debts, prior to May 14th 1863, and at that time he was in advance to the estate in the sum of $3,525.22; and for this sum the bond was given.
On the bond two credits were endorsed, one dated March 15th, 1864, for $1,666.66, which the proofs showed was correct, and another dated February 10th, 1869, credit this bond by $121.06, balance of $630, is received for twenty-one shares stock in Battersea Manufacturing Company, Petersburg, after paying F. J. a balance of $508.94 due on last settlement of his administration account.
The account of setoffs filed by the defendants was for $2,000 paid March 14th, 1864, for $630, the proceeds of the stock referred to in the second endorsement, and $100 received by plaintiff for ten other shares of the stock in the same company on the 1st of September 1869.
After the plaintiff had introduced the bond, the defendants, to prove their setoff, introduced a statement made out by the plaintiff, showing the receipts and payments, including his commissions, made by him. This statement shows the amount due to him on the 14th of May 1863, and it shows a further balance due to him on the 15th of August 1869, of $383.32. On the 10th of February 1869, he charges himself with cash received from sale of twenty-one shares of stock of Battersea Company $630, and bringing in the balance due to him of $383.32 August 15th, 1864, with its interest, and crediting himself with some payments made by him, he balances the account by $121, credited on the bond of Mrs. James and others.
At the foot of this account he says: This statement will close the administration account of F. Johnston as administrator of Fleming James. There is no other personal estate to come to administrator's hands, except ten shares of Ettrick Manufacturing Company's stock, which is valued at ten dollars per share, making $100, and no debts known to the administrator, except that due to himself. The real estate belonging to the heirs of Fleming James, worth from thirty to thirty-five thousand dollars, has been turned over to them by the administrator from the beginning of his administration, and they have had the use and benefit of it all the time.
The defendants also introduced the receipt of the plaintiff, dated March 14th, 1864, for $2,000 in Confederate money, which he is to credit for the whole amount on their bond, if he can use the said money before the 1st of April next without loss. If he could not so use it, the bond was to be credited with $1,666,66; that is, each party losing one-half of the legal discount on that day.
It appears by the statement above referred to, that the administration of the plaintiff commenced in August 1862, and by the 25th of September he had collected $41,322.40, and in November he received the further sum of $3,704. The whole amount received by him up to May 15th, 1863, was $59,286.69. On this sum his commissions amounted to $2,964, for which, with the amount he was then in advance to the estate, he took the bond.
It appeared from the evidence that nothing was said at the time the bond was executed, or afterwards, as to the kind of money in which it was to be paid, and plaintiff admitted that Confederate money was the basis of the bond; and that the Ettrick stock had been sold for $100.
The court held that the defendants were not entitled to be allowed against the plaintiff's demand, the items of $630 and $100 in their bill of setoffs filed, because they are not mutual and due in the same right; the demand of the plaintiff being against them in their individual capacity, and the setoffs being in the hands of the plaintiff, due the estate of his intestate; and further, that they were not entitled, for the same reason, to the credit of $121 endorsed on the bond; but they were entitled to the credit of $1,666.66.
And being of opinion, that the bond was entered into with refcrence to Confederate States treasury notes as a standard of value, which notes were due to the plaintiff in September and November 1862, and the bond was the evidence of such indebtedness, the court scaled the debt at the rate of three for one, that being the rate of scale in November, and rendered judgment for the plaintiff for $678.19, with interest from the 14th of March 1864, till paid. To this opinion and judgment of the court, the defendants excepted, and obtained a supersedeas from this court.
Hansbrough, for the appellants.
J. W. Johnston, for the appelle.
OPINION
BOULDIN, J.
The court is of opinion, for the reason assigned by the judge of the Circuit court, that there is no error in so much of the judgment of that court as refused to allow to the appellants (the defendants in the court below) credit for the sums of $630 and $100, claimed by them as setoffs against the demand of the appellee; said sums being assets in the hands of said appellee as administrator of F. James, deceased, to be administered by him according to law, and for which he is yet accountable to the appellants.
The court is also of opinion, that the Circuit court did not err in disallowing the credit of $121.06 endorsed on the bond of the appellants, that being a sum claimed and endorsed by the appellee as the true balance of said sum of $630, on an ex parte statement made by himself, but not accepted or acquiesced in by appellants. The real balance due from said administrator, if any, should be ascertained by a correct settlement of his administration account, embracing all items from and after the 14th day of May 1863, when the bond in suit was executed. It was proper, therefore, to strike off the credit aforesaid to abide that settlement. Nor did the court err in holding that the bond was executed with reference to Confederate States treasury notes as the standard of value.
But this court is of opinion that the judgment of said Circuit court is erroneous in ascertaining the value of said Confederate States treasury notes as of the month of November 1862, instead of the 14th day of May 1863; that being both the date and maturity of the bond. It is therefore considered by the court that the judgment of said Circuit court be reversed and annulled, and that the appellee do pay to the appellants their costs in this court expended.
And procceding to render such judgment as should have been rendered by said Circuit court, it is further considered by this court that the appellants (defendants in the court below) do pay to the appellee (the plaintiff below) the sum of $421.87, that being the true value of the debt in question in currency, with interest thereon from the 15th day of March 1864, till paid, and his costs in the Circuit court expended.
Which is ordered to be certified, & c.
JUDGMENT REVERSED.