Thompson v. Dekum

• Decision Date: 14 March 1898
• Parties: THOMPSON v. DEKUM et al.
• Court: Oregon Supreme Court

52 P. 517

32 Or. 506

THOMPSON v. DEKUM et al.

Supreme Court of Oregon

March 14, 1898

Appeal from circuit court, Multnomah county; H. Hurley, Judge.

Suit by D.P. Thompson, as surety on one of the bonds of an executor against Edward Dekum and others, sureties on the same and other like bonds, for contribution, and against C.B Bellinger, guardian of the minor heirs of the deceased, and others, for a credit for an overpayment by the executor to the estate. From a decree for plaintiff against the sureties but in favor of the guardian, plaintiff appeals. Modified.

E.B. Watson, for appellant.

Geo. H Williams, A.H. Tanner, and L.B. Cox, for respondents.

BEAN J.

This suit was instituted by D.P. Thompson, a surety on one of the official bonds of Rufus Ingalls as executor of the estate of Mrs. Esther Holladay, against C.B. Bellinger, guardian of the minor heirs of the deceased, Mitchell & Tanner, attorneys for the executor, and all the sureties on his several bonds, to compel Bellinger to credit the judgment recovered by him in favor of his wards against the plaintiff and defendants Dekum and Spaulding, with $1,480, alleged to have been overpaid to Mitchell & Tanner, from the funds of the estate, and to have the rights and liabilities of the sureties on the several bonds determined as among themselves, and to compel them to contribute to the payment of the balance due on such judgment as the justice of the case may require. Ingalls was appointed executor of the estate of Mrs. Holladay in April, 1889, without bonds, and continued so to act until March 27, 1891, when the county court of Multnomah county, on the application of the defendant Bellinger, as guardian, made an order requiring him to give a bond in the sum of $25,000 for the faithful performance of his trust. On April 13, 1891, in obedience to this order, Ingalls filed his bond in due form, with the defendant Loewenberg as surety, and it was duly approved by the county court. At the time this bond was executed, Ingalls was absent from the state, and his attorney, in order to induce Loewenberg to become a surety thereon, agreed to, and did, deposit, of the funds belonging to the estate, the sum of $25,000 in the Merchants' National Bank, of which Loewenberg was president, under an agreement that it should be drawn out only upon claims against the estate ordered paid by the county court in due course of administration. When Ingalls returned to Oregon, a few days later, and learned what had been done in the matter, he was very much dissatisfied with the arrangement, because the funds were tied up so he could not check against them at his pleasure. He thereupon immediately set about securing another bond; and on the 23d of the same month, on his application, the county court made an order allowing him to substitute for the Loewenberg bond one with the plaintiff and Dekum as sureties, and ordered that the former be canceled and the surety discharged. On the next day, the $25,000 was withdrawn from Loewenberg's bank, and $15,000 thereof deposited in the Commercial National Bank, of which Thompson was president, and the remaining $10,000 in the Portland Savings Bank, of which Dekum was president. Thereafter, on the 4th day of August following, upon Ingalls' application, the county court made an order allowing him to file a third bond with the defendant Spaulding as surety, as a substitute for the Thompson and Dekum bond, and releasing the sureties on the latter from future liability; and thereupon the balance of the funds of the estate (about $10,133) was withdrawn from the Commercial National and the Portland Savings Bank, and $7,000 thereof loaned to the defendant Spaulding by the executor. The several bonds referred to were in form the same, each conditioned that Ingalls, as executor, "shall faithfully execute the duties of said trust according to law," and each recited that it was given in pursuance of the order of the county court of March 27, 1891, requiring Ingalls to give bonds, and contained no reference to any other bond. Upon final accounting, Ingalls was charged with $560, interest on the money loaned to Spaulding; and it was adjudged and decreed that there was a balance in his hands as such executor, including this sum, of $12,557.09, which he was ordered and directed to pay over to the defendant Bellinger as guardian in default of which Bellinger sued and recovered judgment for $11,898.59 against the defendants Thompson, Dekum, and Spaulding on their bonds. Bellinger v. Thompson, 26 Or. 320, 37 P. 714, and 40 P. 229. Included in this judgment is the sum of $1,833.33, which was adjudged on final settlement of the estate to be due the defendants Mitchell & Tanner on a claim for legal services rendered Mrs. Holladay, and which the executor was ordered to pay over to the defendant Bellinger in trust for them, and by reason thereof it is sought by this suit to compel Bellinger to credit on the judgment recovered by him the sum of $1,480, alleged to have been overpaid to Mitchell & Tanner by the executor on another claim against the estate, arising as follows: They were employed by Mrs. Holladay in her lifetime to commence and prosecute to final judgment an action against the estate of her deceased husband, upon claims held by her, aggregating a very large amount, under an express agreement for a contingent fee of 10 per cent. of the amount of the judgment so recovered. Among the claims held by her at the time was one in favor of Ingalls for $14,595, which had been transferred to her by an absolute assignment, but in fact for collection only. During the pendency of the action, Mrs. Holladay died, and it was continued in the name of her executor, and finally resulted in a judgment for the sum of $100,268. Ingalls paid Mitchell & Tanner the agreed fee of 10 per cent. on the amount thereof from the funds in his hands as executor, and such payment was approved by the county court. Upon final settlement of his accounts, Ingalls claimed and was allowed a proportionate share of such judgment, on the ground that his claim against the estate of Ben Holladay had been assigned to Mrs. Holladay for collection only; but it was ordered that, on account thereof, he should be charged with a proportionate share of the attorney's fee paid by the estate for the recovery of such judgment, amounting to $1,480; and it is this amount which the plaintiff insists should be credited on the judgment recovered by Bellinger against the bondsmen. The court below held that the plaintiff was not entitled to the credit claimed, and that each of the sureties on Ingalls' several bonds was liable for, and should contribute, one-fourth of the amount of money necessary to satisfy the judgment in favor of Bellinger, and from this decree the appeal is taken.

The contention for the plaintiff is--First, that the Spaulding bond, being the last in point of time, is, as between the several bonds, the primary security, and that he should therefore be compelled to pay the entire judgment; and second, that, if this is not so, the judgment should be apportioned among the sureties according to the number of bonds, and not pro rata, in the ratio of the aggregate number of sureties; and, third, that the judgment should be credited with $1,480 on account of the sum alleged to have been overpaid Mitchell & Tanner. The defendant...