Appeal of Donahue

• Decision Date: 21 November 1892
• Parties: Appeal of DONAHUE.
• Court: Connecticut Supreme Court

26 A. 399

62 Conn. 370

Appeal of DONAHUE.

Supreme Court of Errors of Connecticut.

Nov. 21, 1892.

Appeal from superior court, New Haven county; J. M. Hall, Judge.

Thomas Donahue presented a claim to the commissioners on the estate of Patrick Coyle, deceased, which being disallowed, he appealed to the superior court, where judgment was rendered against him, and he again appeals. Affirmed.

J. O'Neill, for appellant.

J. W. Ailing and E. F. Cole, for appellee.

FENN, J. The appellant, upon his appeal to the superior court from the doings of the commissioners upon the estate of Patrick Coyle, deceased, filed in that court the following claim against said estate, being, as conceded, the same claim presented to the commissioners, and disallowed by them: "Estate of Patrick Coyle, to Thomas Donahue, Dr. 'In 1882, Patrick Coyle verbally promised Thomas Donahue that he would convey to him the house and lot where the said Thomas Donahue resides, in consideration for the promise on the part of said Thomas Donahue that he would do and perform such legal business as the said Patrick Coyle should require the said Donahue to do and perform during the remainder of the life of said Patrick Coyle. The said house and land were then of the value of about seven thousand dollars. The said Donahue, ever since said promise was made, did and performed such legal services as were required of him by the said Coyle. The said Coyle neglected and refused to convey to the said Donahue the said house and land, though requested so to do, and particularly about September 30th, 1885. The said Donahue claims seven thousand dollars damages from the estate of said Coyle for the breach of the above mentioned agreement." To this statement of claim the administrator demurred, assigning, among other grounds, the statute of frauds and the statute of limitations. The demurrer was sustained, and thereupon the appellant filed the following statement of his claim: "Amended statement of the plaintiff's claim. In 1882, Patrick Coyle promised Thomas Donahue that he would convey to him (Donahue) the place where he (Donahue) resided; and the said Donahue promised, in consideration thereof, that he would act as attorney and counselor for the said Coyle, and do and perform all the legal services required of him by the said Coyle during the remainder of the said Coyle's life. In pursuance of said agreement, which was wholly by parol, the said Donahue worked and labored, and counseled and advised with the said Coyle, as an attorney and counselor at law, and did and performed all of the legal services required of him by the said Coyle during the remainder of the said Coyle's life, and for a period of about nine years, and he reasonably deserved to have for his services and labor, and for his counsel and ad vice aforesaid, the sum of $7,000." This was also demurred to on the ground that the record disclosed that no such claim was ever presented to or considered by the commissioners, and that therefore the claimant could not have been aggrieved by their doings. This demurrer was also sustained, and the appeal presents for our consideration two assignments of error; that is to say, the decision of the court upon each of said demurrers. The first requires merely a statement.

The claim as originally filed was simply and only one for damages for refusal to perform an oral agreement for the sale of real estate. No authority except the language of the statute of frauds itself (now Gen. St. § 1366) is necessary to show that such a claim cannot be enforced. No civil action can be maintained upon such an agreement. It is unnecessary to consider the applicability of the statute of limitations also.

The second assignment requires a more extended examination. It should be noted at the outset that the record does not show that any action of the superior court was asked for, either to allow the amended statement or to erase it. The demurrer was substantially because such amendment changed the ground of action; and it is said in the brief of the appellee that" this demurrer was in substance an objection to the allowance of the amendment, and was so regarded by the parties and the court."

Since the argument of the appellant was in virtual affirmance of this statement, we have concluded to consider the real question presented, without other reference to the form of presentation except to say that it appears to us an inapt...