Durfee v. Abbott

• Decision Date: 27 April 1883
• Court: Michigan Supreme Court
• Parties: DURFEE v. ABBOTT.

15 N.W. 559

50 Mich. 479

DURFEE v. ABBOTT.

Supreme Court of Michigan

April 27, 1883

The court cannot refuse to submit proper questions to a jury for special findings because it is claimed the parties have agreed on the facts, unless such agreement is made a matter of record.

When a residuary legatee, who has given bond for the payment of debts and legacies, extends the time of payment of such legacies by giving notes therefor and taking receipts for payment without the assent or procurement of the sureties on his bond, the sureties are discharged from liability.

Where a legatee, who is a minor, accepts a note of the residuary legatee in payment of a legacy due her and such note falls due before she is of age, unless she subsequently ratifies the same the sureties on the bond of the residuary legatee are not discharged.

Error to Wayne.

Frazer & Gates, for plaintiff.

Alex. D. Fowler, for defendants and appellants.

CAMPBELL J.

Recovery was had below against John McKeown as principal, and respondents as sureties, on his bond as executor and residuary legatee of John T. McKeown, deceased, for legacies left to Sophia and Kate Lantz. The defense rested chiefly on the ground of dealings which discharged the sureties. There are, however, some preliminary questions to be noticed. The objection that the present suit should have been by scire facias, on the footing of a former judgment, for the penalty of the same bond, would have prevailed if properly taken, but it is not raised by the pleadings. Defendants asked that several very important questions should be submitted to the jury for special findings. A portion of these the court declined to submit, not because improper, but because the judge said the parties both agreed on the facts. There was no such agreement on the record, and reference was had to some supposed or actual understanding on the trial in presence of the jury. This was evident error. The object of having special findings is to know what are the rights of the parties, and to have them spread upon the record.

Whether the jury draw their conclusions from the preponderance of evidence, or from admissions in open court can make no difference as to the necessity of having the facts declared on the record. Until this is done the facts cannot be regarded as settled. It would seem very strange if when a party in open court should admit his adversary's case, that admission before the jury could be held as exempting them from rendering a verdict, so that a judgment might be given upon it. But such a holding would be no more incorrect in principle than one which should for similar reasons prevent a finding on any part of the case. This same question was decided in Horbough v. Cicott, 33 Mich 241.

The facts relied on as discharging the sureties were that on October 20, 1877, the executor delivered to each of the legatees now suing a promissory note for the amount of her legacy, payable in two years from date. Both legacies had then become due, and it was his duty to pay them, inasmuch as the will required their payment within two years, and the testator died and the will was...