Stimpson v. Sprague

• Decision Date: 01 May 1830
• Parties: STIMPSON v. SPRAGUE ad'x
• Court: Maine Supreme Court

6 Me. 470

STIMPSON v. SPRAGUE ad'x

Supreme Judicial Court of Maine, Lincoln

May, 1830

THIS was an action of assumpsit, against the administratrix on the estate of the late Joseph Sprague, Esq. a counsellor of this court; in which the plaintiff declared on a general undertaking and promise of the intestate, in consideration of his fees to be paid, to conduct a certain suit in a proper skilful and diligent manner; and for the securing of the debt sued for in that action, to sue out execution upon the judgment, and deliver it to an officer within thirty days after the rendition of judgment; and alleged his neglect in this particular, whereby the attachment of the debtor's goods was dissolved, and the debt lost. The second and third counts were the general counts for money had and received and for money laid out and expended. After verdict for the plaintiff, the defendant moved in arrest of judgment that the cause of action stated in the first count, to which alone the evidence applied, being founded in the alleged negligence of the intestate, did not by law survive.

Judgment on the verdict.

Allen and Farley, for the defendant, cited McMillan v Eastman, 4 Mass. 378; Cravath v. Plympton, 13 Mass. 454; Todd v. Bradford, 17 Mass. 567; Stebbens v. Palmer, 1 Pick. 79; Holmes v. Moore, 5 Pick. 257.

Greenleaf and Ruggles, for the plaintiff, cited 2 Saund. 216, note; Paine v. Ulmer, 7 Mass. 317; Troup v. Smith's ex'rs 20 Johns. 33; 1 Chitty's Pl. 53, 91; 2 Ld. Raym. 973; 7 East 134, 186; Hambly v. Trott, Cowp. 376.

OPINION

MELLEN, C. J. delivered the opinion of the Court at the ensuing June term in Kennebec.

The only question for decision arises upon the motion in arrest of judgment, founded upon the first count; it not being contended that there was any evidence on trial applicable to either of the other counts. The counsel contends that the cause of action set forth in the first count does not by law survive against the defendant as administratrix. It certainly is an established principle of law that actions founded on a contract made by a testator or intestate survive against the executor or administrator. The case, however, of a promise to marry, seems to be an exception, as settled in Stebbins v. Palmer, cited in argument, and in the cases there mentioned. The only material inquiry, then, to which we are required to direct our attention, is whether an action of assumpsit would have been maintainable against the intestate in his life time, to recover damages sustained by the plaintiff by reason of the negligence alleged; for if so then the present action is well founded. We are not called upon to decide whether an action of assumpsit will lie against a sheriff or his deputy, or a coroner, or any other legal officer, for a neglect of his official duty. The usage has been in such cases to declare in a special action on the case, describing the negligence or malfeasance. In the case of McMillan v. Eastman, Parsons C. J. says, " the remedy against a public officer, for neglect or misbehavior in executing his office, is generally by an action of the case, alleging his misdemeanor, or sometimes by an action of debt, according to the nature of his misfeasance, but not by an assumpsit as implied by law." Sprague, the intestate, was not a public officer, and therefore does not necessarily come within the limitations above specified. The general principles in relation to this subject are clearly stated by Archbold in his digest of the law relative to pleading and evidence pages 23, 24. " If a man undertake an office, employment, trust or duty, he thereby, in contemplation of law, impliedly contracts with those who employ him, to perform that with which he is entrusted, with integrity, diligence and skill; and if he fail so to do, it is a breach of contract, for which the party may have his remedy by action on the case, or, in most cases, by action of assumpsit." Here the principle, so far as relates to an office or officer, does not accord...