Coffin v. Adams

• Decision Date: 11 April 1881
• Citation: 131 Mass. 133
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Lewis E. Coffin, administrator, v. Joseph Adams & another

131 Mass. 133

Lewis E. Coffin, administrator, v. Joseph Adams & another

Supreme Court of Massachusetts

April 11, 1881

[Syllabus Material]

Suffolk. Contract, stated in the writ, dated December 23 1878, to be brought in the name of the plaintiff, as administrator of Langdon Coffin, for the benefit of the Newburyport Five Cents Savings Bank, upon a promise of the defendants, in a deed of land from the intestate to them, to pay a mortgage thereon. Answer, a general denial, and payment. Trial in the Superior Court, without a jury, at January term 1880, before Allen J., who made the following report thereof:

On June 14, 1871, Langdon Coffin, in consideration of $ 2631 conveyed to the defendants land in Newton by a deed describing the granted premises by metes and bounds, and as "subject to a mortgage to Fanny S. Veazie for $ 16,000 and accrued interest to this date, also to all taxes assessed for the current year, which mortgage, interest and taxes the grantees assume and agree to pay as their own debt." The mortgage mentioned was given on January 2, 1871, by Langdon Coffin to Veazie, to secure the payment of the sum of $ 16,000, and was assigned on September 4, 1874, to the Newburyport Five Cents Savings Bank; and on October 12, 1878, the bank, in execution of a power contained in the mortgage, sold the mortgaged premises by public auction for the sum of $ 12,000, and on the same day took a conveyance from the purchaser for the same sum, and continued to hold under that title.

The plaintiff was the administrator of the estate of Langdon Coffin, which is insolvent. This action was brought by the bank in his name, under verbal authority from him, for which authority the bank paid no consideration, to recover the balance due on the mortgage debt.

On May 20, 1879, the administrator gave the bank and its attorneys notice in writing that this action "was commenced by you in my name, without my consent, through a misunderstanding on your part or on mine. I am informed by counsel that I cannot with safety to myself, or without damage to the estate which I represent, permit said suit to be further prosecuted, that the suit should be for the benefit of the estate of my intestate. Therefore I demand that you discontinue said suit forthwith. I forbid the further use of my name as plaintiff therein. Your taxable costs I am ready to pay."

At October term 1879, the administrator presented to the Superior Court the following petition: "Respectfully represents Lewis E. Coffin, the nominal plaintiff in the above-entitled action, that said action was brought without his consent; that the estate of his intestate is insolvent, and must be settled as an insolvent estate in the Probate Court; that the Newburyport Five Cents Savings Bank, for whose benefit said action is alleged to be brought, has refused to secure him against costs and damages that may arise from said suit; that he has long since notified said bank to discontinue said action; that he is instructed by his counsel that he cannot with safety permit said suit to be further prosecuted. Wherefore he prays this honorable court to order said action to be discontinued, or to order said bank to execute to your petitioner a bond with sufficient sureties with condition to save him harmless and indemnify him for all loss, damage and costs that may arise or happen to him from or on account of the use of his name in said action, both in his individual capacity and as administrator of the estate of his intestate, and such other and further relief as the court shall deem meet."

On that petition, Colburn, J., on November 13, 1879, made the following order: "The Newburyport Five Cents Savings Bank to execute and deliver to the plaintiff within ten days from this date an agreement in writing with sufficient sureties, under seal, to save him harmless, &c., as requested. But the court does not hereby determine the question whether or not the bank has the right to maintain this action in the name of the plaintiff." The bank gave a bond in accordance with this order.

At the trial of the action, the defendants called the administrator as a witness, and offered to prove by his oral testimony that he had revoked the authority of the plaintiff's attorneys of record, and forbade the further prosecution of the action, at the same time offering to pay all costs and expenses incurred by the bank in the prosecution thereof; and moved that the action be dismissed. But the judge ruled that the evidence was not competent, and excluded it, against the defendant's exception; and found for the plaintiff in the sum of $ 4555.05, being the amount remaining unpaid of the mortgage debt, and ordered judgment therefor; and, by consent of parties, reserved the case to be reported to this court.

There was necessary delay in preparing the report, and the case was continued nisi. At October term 1880, before a report was filed, the administrator asked to be further heard upon his petition filed at October term 1879, and for an order that the action be discontinued in accordance with the prayer of that petition, and offered the same evidence which had been offered by the defendants, and his verbal declaration in open court that he did not authorize, but forbade, the further prosecution of the action; and he asked...