McKeown v. Harvey

• Decision Date: 21 January 1879
• Citation: 40 Mich. 226
• Parties: John McKeown, Ex'r v. Andrew Harvey
• Court: Michigan Supreme Court

40 Mich. 226

John McKeown, Ex'r v. Andrew Harvey

Supreme Court of Michigan

January 21, 1879

Submitted January 14, 1879

Error to Wayne. Submitted Jan. 14. Decided Jan. 21.

Judgment affirmed, with costs.

Alex. D. Fowler for plaintiff in error.

John W McGrath for defendant in error.

Campbell C.J. The other Justices concurred.

OPINION

Campbell C.J.

Harvey proved a claim against the estate of John T. McKeown for heating apparatus contracted for during his life, but mostly set up after his death. The case was appealed to the circuit court for Wayne county, where it was referred, and the claim allowed.

There was no written contract, but a paper was proven which was shown to be a copy of specifications accepted by the deceased. The questions raised are chiefly questions of evidence. A preliminary question, however, is raised concerning the power of commissioners to pass on such a claim because the work was done after the testator's death.

The claim for extra work ordered by the executor was rejected. As to the rest, there can be no doubt that the estate of a deceased person is bound by his contracts in all respects, if they are carried out. If this work had not been done according to contract it would have raised a very different question whether an implied contract could be raised on a quantum meruit, which could bind the estate. As the testimony is clear and unequivocal that there was an absolute performance, no such difficulty arises.

When plaintiff below was called to the stand he was questioned concerning a proposition made to one R. T. Brookes, architect, to do work on a house belonging to McKeown, and this was objected to as equally within the decedent's knowledge. This objection was somewhat premature, as nothing in plaintiff's testimony showed that McKeown had any knowledge on the subject, and it was certainly possible for him to have entrusted his architect with plenary authority. Harvey was not permitted to testify to any dealings with deceased.

Brookes, the architect, who was under no disability, made out the case which connected McKeown with the acceptance of the proposals.

Secondary evidence was given by copy of the proposals, the proof being that the original could not be found. It seems to us the evidence of loss was sufficient to raise a reasonable probability that it could not be found. As this question came up on a case which had already been tried before the...