Huntsman v. Fish

• Decision Date: 08 December 1886
• Parties: MINNIE P. HUNTSMAN, Guardian, <I>vs.</I> DANIEL FISH.
• Court: Minnesota Supreme Court

36 Minn. 148

MINNIE P. HUNTSMAN, Guardian, vs. DANIEL FISH.

Supreme Court of Minnesota.

December 8, 1886.

The plaintiff, as guardian of Sarah G. Huntsman, Henry R. Huntsman, Mary L. Huntsman, and Frances B. Huntsman, minor children of Diedrich A. Huntsman and Mary A. Huntsman, deceased, brought this action in the district court for Hennepin county, to recover money which had been received by the defendant for the account of the plaintiff as such guardian. The action was tried before Young, J., without a jury, and judgment directed for the plaintiff. Defendant appeals from an order refusing a new trial.

Robert G. Evans and Ell Torrance, for appellant.

Chas. P. Biddle, for respondent.

BERRY, J.

This is an action to recover money collected by defendant as attorney of the plaintiff in her capacity of guardian of the four minor heirs of D. A. Huntsman.

1. After the collection was made, and before this action was commenced, two of the minors became of age, and the defendant contends that as to them the guardianship was at an end, and therefore the recovery by the plaintiff of the whole balance in his hands was wrong. But the money was collected and held by defendant for the guardian, and it was therefore entirely proper that she should reduce it to possession, get it into her own hands, in preparation for the settlement of the account required of her by law, and for the distribution which, upon such settlement, it would be her duty to make. The case is no different in principle from what it would have been if the guardian had deposited the money in a bank in her own name, when certainly she would have had the right to check it out, or sue the bank for it, if necessary in order to get possession of it as preparatory to settlement and distribution. Though, as respects the minors who had reached majority, the guardianship was at an end in general, yet, as respected the matter of the settlement of the guardian's account, and the consequent distribution, it still survived. Jacobs v. Fouse, 23 Minn. 51.

2. Conceding (without determining) that in general a demand is an essential prerequisite to the maintenance of an action for money collected by an attorney, we are clear that in this case the necessity of proving a demand is dispensed with by the ground upon which defendant plants himself in his answer. This ground is that, though he had collected the money as charged in the complaint, he had applied it to the payment of the plaintiff's indebtedness to him. This is, of course, in effect an absolute denial of plaintiff's right to recover under any circumstances. In face of such a position it must be assumed that a demand would have been unavailing, — an idle formality which the law does not require. The defendant by his answer estops himself from a contrary claim. See Kellogg v. Olson, 34 Minn. 103, (24 N. W. Rep. 364.) This estoppel appearing upon the pleadings, it was not necessary for the trial court, for the purpose of sustaining its order for judgment in plaintiff's favor, to find that there was a demand, or that the necessity for one was dispensed with. Brainard v. Hastings, 3 Minn. 17, (45.)

3. The trial court finds that plaintiff was appointed guardian of the four minor heirs of D. A. Huntsman on September 6, 1882; that, prior to that time, one Hooper had been appointed administrator of Huntsman's estate, and guardian of said minors; that, before plaintiff's appointment as their guardian, defendant was employed by one Coulthard, but without any request by plaintiff, to appear in the interest of the heirs of the estate (including...