Hurst's Adm'r v. Hite

• Decision Date: 25 August 1882
• Citation: 20 W.Va. 183
• Court: West Virginia Supreme Court

20 W.Va. 183

Supreme Court of Appeals of West Virginia.

Submitted August 3, 1882

Decided August 25, 1882

*(Green, Judge, Absent.)

1. The rule is, that where payments are made from time to time on a 49 293 debt bearing interest, the interest is to be computed on the debt | 55 lis up to the time of payment, and the payment is to be deducted j64 221 from the amount, principal and interest, and the balance forms '~ a new capital; on that balance interest is to be computed from I that time, but the new capital must not be more than the former. If the payment be less than the interest due at the time, the surplus of interest must not augment the capital, (p. 198.)

2. It is error to compute interest on payments to a future day, when the debt is paid or settlement made, and then credit the payment and interest thereon upon the debt principal and interest. But it is not so as to offsets, (p. 193.)

3. In this case the statute of limitations did not cease to run against the defendant's offsets respectively, until the time the defendant's answer and accounts of offsets were filed in the cause. And as this suit was pending on the first day of April, 1869, when the Code of this State of 1868 took effect, and the defendant's answer and accounts of offsets were filed prior to the said first day of April, 1869, in computing the statute of limitations of five years as to such offsets the time between the seventeenth day of April, 1861, and the first day of March, 1865, should be counted out, (p. 194.)

4. Where service is performed by one at the instance and request of another, and especially where that other is personally benefited by the service, the law implies a contract, that the party, who performs the service, shall be paid a reasonable compensation therefor, unless there be something in the relation of the parties or the circumstances of the case, which precludes the idea of such compensation; in which case there would be an implied argeenient or understanding, that no such compensation was to be paid. (p. 202.)

Appeal from and supersedeas to a decree of the circuit court of the county of Jefferson rendered on the fifteenth day of April, 1875, in a cause in said court then pending, wherein the administrator of Hannah Hurst, deceased, was plaintiff,

-Counsel in the court below. and Thomas Bate, in his own right and administrator of William G. Ferguson, deceased, was defendant, allowed upon the petition of said IIite.

Hon. John Blair Hoge, judge of the third judicial circuit, rendered the decree appealed from.

Haymond, Judge, furnishes the following statement of the case:

The bill in this case was hied by Wm. H. Travers, administrator with the will annexed of Hannah Hurst deceased, in the circuit court of the county of Jefferson at rules on the 1st Monday of March, 1868; but this suit was commenced on the 28th day of February, 1868. The bill in substance alleges, that on the 3d day of April, 1852, Thomas IIite of said county executed his bond to Wm. G. Ferguson for five hundred dollars, payable twelve months after date with legal interest from date; and on the 1st day of April, 1853, the said IIite executed his further bond to the said Ferguson for the further sum of five hundred dollars payable one day after date; and on the 19th day of March, 1855, the said IIite executed his other bond to said Ferguson for the further sum of one thousand dollars payable one day after date; that said Ferguson after all this and in the year 1855 died, having first duly made and declared his last will and testament, by which the said Hite was named as his executor, and the plaintiff's testatrix was made his legatee; that the said IIite duly qualified and assumed the duties of executor of said estate; that the plaintiff found among the papers of his testatrix, the late Hannah Hurst, the three several bonds above described, and says, he presumes from their being thus found in the possession of the legatee, that they were delivered to her by the said executor, Thomas IIite, in satisfaction pro tanto of her interest in said estate as legatee, but that there is no assignment by the said executor upon said bonds to the said legatee. The bill also alleges, that plaintiff has felt embarrassed by this state of facts in the institution of a suit at law to recover the amount of said bonds, as in the absence of any assignment the suit could only be properly brought in the name of the legal representative of said Ferguson, who is both execu- tor and debtor. The bill makes defendant thereto the said Thomas Hite, executor of Wm. G. Ferguson deceased, and said Hite in his own individual character as the obligor of said bonds, and prays for a decree against said Hite for the amount of said three bonds with their interest, and for such further decree, as may be just and proper.

Afterwards on the 16th day of April, 1868, the said Hite by leave of the court filed his answer to said bill; and the plaintiff made general replication thereto.

The answer of Hite to the bill, so far as is necessary to refer to it, is substantially as follows: He admits, that he executed to Win. (1. Ferguson the two several bonds for five hundred dollars each at the dates mentioned in the bill, and that the first of said bonds bears interest from date; but he says, that he knows, that both of said bonds were given for a consideration proceeding from said Hannah Hurst and ought properly to have been executed to her. He further says and alleges, that said Ferguson was her nephew, lived with her, managed her business and frequently took bonds and notes payable to himself, when they were really taken by him as agent for his aunt Hannah Hurst; that both of these bonds were given by him for so much money received by him from William Moore and Samuel Moore, executors of William Moore, upon orders signed by said Ferguson directing them respectively to pay said sums, the amount of rent due from them to said Hannah for a farm of hers rented to said William Moore; that against these two bonds, which should have been drawn payable to said Hannah, he has payments and offsets largely exceeding the amount ot said bonds, and the said administrator (plaintiff) holds against him (defendant) another bond or note for five hundred dollars; that the character of said offsets are various moneys paid tor her at sundry times, wheat furnished her, moneys paid to her, services rendered to her by respondent, as also by his hands, horses, &c., through many years; that for the-items of his account, so far as they are remembered, he refers to the two accounts filed as a part of his answer marked "Respondent's Exhibit No. 1," and "Respondent's Exhibit No. 2;" that after the death of said Ferguson he (respondent), who was a neighbor of said Hannah, acted as her agent, transacting her business for her, aiding her in the cultivation of her land hy supplying her with horses, hands, &c, and by his personal superintendence of her business; that he also paid off for her with his own funds many accounts against her, and also paid her personally money, when she needed it; that all these accounts he is ready and willing to have settled and is satisfied, that on a fair settlement the estate of said Hannah will be in his debt after allowing said two bonds of five hundred dollars each payable to said Ferguson as a part of her estate.

He admits that on the 19th day of March, 1855, he made to said Ferguson another bond for one thousand dollars payable one day after its date, and that the consideration of this bond was money received by him of said Ferguson, lie also admits that said Ferguson died in the year 1855, having first made his last will and testament; but he alleges, that he (respondent) was not named as executor in said will; that by said will all the estate real and personal of said Ferguson in this State was left to said Hannah; that in July, 1855, he (respondent) qualified as administrator with the will annexed of said Ferguson; that all the personal property, wdiieh came to his hands, was duly appraised by appraisers appointed by the court, and was returned to the office of the recorder of said county for recordation on the 13th of September, 1855, a copy of which is made an exhibit marked "Respondent's Exhibit No. 3."

He alleges, that he passed over all the personal property of every sort, which had come into his hands, and which was so appraised at four thousand, five hundred and ninety-three dollars, to Hannah Hurst as the legatee under said will, and took her receipt therefor; that the only other assets of the estate of Wm. GL Ferguson, which came into his hands as administrator, were four notes of small amounts, the makers of three of which were insolvent, and the fourth, for fifty-one dollars and twenty-two cents, was collected by him and paid on a debt due from said Ferguson; that as administrator of said Ferguson he has paid out some five hundred and forty dollars and forty-eight cents not including interest on said payments; that he files a list of said payments marked "Respondent's Exhibit No. 4." He denies, that he ever delivered to said Hannah the bonds named in the bill execu- ted by him to said Ferguson in satisfaction pro tanto of her legacy, or in any other way. He alleges, that on the contrary none of said bonds ever came into his possession at the death of said Ferguson, or immediately thereafter; that they' (said bonds) were in the possession of said Hannah Hurst,-she claimed, that all three of them properly belonged to her and ought to have been executed to her, and she refused to give them over to him as administrator of said Ferguson; that he was himself aware, that her claim, so far as the two live hundred dollar bonds went, was well founded; that he (respondent) is willing and desirous ot settling his account as administrator with the will annexed of said Ferguson deceased, and after there shall have been allowed him as a credit on said one thousand dollar bond the amount due him on...