Wallin v. Smolensky

• Decision Date: 15 April 1939
• Citation: 20 N.E.2d 406,303 Mass. 39
• Parties: WALLIN v. SMOLENSKY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

303 Mass. 39

20 N.E.2d 406

WALLIN

v.SMOLENSKY et al.

Supreme Judicial Court of Massachusetts, Plymouth.

April 15, 1939.

Petition in equity by Johan E. Wallin against Samuel Smolensky, administrator, and another to enforce the alleged obligation of the defendant and the surety on his bond as administrator of the estate of Sophie Winberg to pay a judgment for $3,024.76 recovered by the plaintiff as administrator of the estate of Sophie Wallin, deceased. Decree for defendants, and plaintiff appeals.

Affirmed.Appeal from Probate Court, Plymouth County; Poland, Judge.

H. E. Carlson, of Boston, for petitioner.

H. B. White, of Boston, for Maryland Casualty Co.

J. E. Handrahan, of Brockton, for Smolensky.

QUA, Justice.

This is a petition in equity in the Probate Court under G.L.(Ter.Ed) c. 205, § 7A, to enforce the alleged obligation of the respondent Smolensky and of the surety on his bond as administrator of the estate of Sophie Winberg to pay a judgment for $3,024.76 recovered in a district court in an action by the petitioner as administrator of the estate of Sophie Wallin, his deceased wife, for services claimed by him to have been rendered by his intestate to Winberg before the latter's death. See Harmon v. Sweet, 221 Mass. 587, 109 N.E. 942.

These facts appear from findings of the judge: The Winberg estate held a mortgage on real estate of Johan E. Wallin, the petitioner, on which there was due a balance of about $1,200. Wallin as administrator of his wife's estate drew up a claim for the services for about $2,700, and in substance offered to take a discharge of the mortgage on his own property in full payment of this claim of his wife's estate against the Winberg estate. After negotiations in which Wallin was represented by a duly authorized attorney the parties agreed to a compromise or settlement on that basis, and on May 4, 1937, in accordance with this agreement, Smolensky as administrator of the Winberg estate filed in the Probate Court a petition for authority to compromise the Wallin claim on those terms. G.L.(Ter.Ed.) c. 204, § 13. This petition was ‘allowed’ on August 23. But in the meantime, before the short statute of limitations should run against him, Wallin as administrator of his wife's estate brought the action at law against Smolensky as administrator of Winberg's estate. Smolensky did not appear in that action, believing his appearance unnecessary because the compromise was being perfected by the probate proceedings. Judgment by default was entered against him on May 28, 1937. Notwithstanding the judgment, on September 21, 1937, the compromise was completed by Smolensky delivering to Wallin's attorney a discharge of the mortgage, which the latter recorded.

Although he has had the benefit of the discharge of the mortgage on his own property, the petitioner as administrator of his wife's estate now seeks to collect the full amount of the judgment. He contends that the judgment liquidated the claim for services, and that a liquidated claim cannot be settled by the payment of less than the amount due without additional consideration or an instrument under seal, citing Harriman v. Harriman, 12 Gray 341;Specialty Glass Co. v. Daley, 172 Mass. 460, 52 N.E. 633;Moss v. Goldstein, 254 Mass. 334, 150 N.E. 91, and similar cases. The first question is whether Wallin as administrator of his wife's estate agreed upon good consideration to accept the discharge of the mortgage on his own property in full satisfaction of the judgment.

Wallin's acceptance of the discharge, through his attorney, after Wallin had obtained the judgment but in accordance with his previous agreement, was an affirmance and a carrying out by satisfaction of the accord which the parties had reached before the judgment. And there was consideration to support that accord. The judgment in favor of Sophie Wallin's estate imposed upon Smolensky as administrator of the Winberg estate no obligation to discharge the mortgage given by Johan Wallin upon his own property. The giving of that discharge was a new thing different from and beyond that which Smolensky was already bound to do and was therefore good and valid consideration for the release of the judgment. The case is well within the principle of many decisions. Brooks v. White, 2 Metc. 283,37 Am.Dec. 95;Guild v. Butler, 127 Mass. 386, 390;Gilson v. Nesson, 198 Mass. 598, 84 N.E. 854, 17 L.R.A.,N.S., 1208; Smith v. Johnson, 224...