Hill v. Williams, 59 N.C. 242, 6 Jones Eq. 242 (1861)

June 1861 · Supreme Court of North Carolina

59 N.C. 242, 6 Jones Eq. 242

WHITMEL J. HILL, Adm’r against JOSEPH J. WILLIAMS.

An answer, when directly responsivo to the Ck,gallons of the bill, or to an interrogatory put in the bill, cr on a special ovr ruination, is to bo taken as true, unless it bo proved noi; to be true by the oath of two witnesses, or of one witness with corroborating circumstances equal to the force of another witness, or by some other kind of evidence which w entitled to tho weight of two witnesses on oath.

Where one, on the footing of a friend, neighbor and relative, undertook to manage the moneyed affairs of an old lady, without any stipulation as to compensation, and without intending to make anjr charge, it was held that he was not entitled, after her death to claim a remuneration for his services, and that his being held to a strict account by her administrator, did not vary the case.

Where an agent withheld the notes of his principal from her administrator, which notes were of long standing, and large amounts of interest had accumulated, and'being warned by the administrator that he would be held liable for interest on the accumulation -unless he surrendered the notes, or had them renewed, it was 1idd that he should be made liable so to account from the date of the filing of the bill.

Cause removed from the Court of Equity of Halifax county.

The bill was filed by the plaintiff, as administrator of Mrs. Temperance Dawson, asking for an account and settlement of defendant’s agency in managing her plantation and pecuniary matters. It appeared from the pleadings and proofs, that Mrs. Dawson had added to her estate a large property that had formerly belonged to her son, which she purchased at a sale of his property under a deed of trust; that the whole of her estate consisted of a large and valuable plantation and about sixty slaves; that her son, the former owner of a part of it, after the sale of it to his mother, remained with her, and controlled and managed the plantation business and money matters until his death, in 1846, when the defendant, who was a neighbor and relation, on the footing of a friend, undertook the management .of her affairs. It is alleged that the defendant, as the agent of Mrs. Dawson, from the time of the death of her son, up to the time of her own death, in 1857, received the proceeds of the crops made on her farm; also, the proceeds of the sale of several slaves and other moneys, and invested the same, or a large part thereof, in the notes of divers persons, to whom he loaned the money, and agreed, as to such part as was not invested that he would pay interest thereon, and this bill is filed for a discovery of these amounts, and for an account and settlement. The plaintiff alleges that just after the .death of Mrs. Dawson, there were in the defendant’s hands notes of several years standing, on which interest had accumulated to a large amount, and that he called the attention of the defendant to the fact that this interest was an unproductive fund, and desired the defendant to hand over those notes to him, that he might administer them in the due course of law; but that the defendant refused to do so, saying that he would have the notes renewed. He insists that the defendant shall pay interest on this fund from the date of such notification up to the time of tiie decree. The plaintiff also alleges that ho demanded a full settlement of tho agency, which was refused by the defendant, unless the plaintiff would, agree to go into such settlement without time to examine his counter claims, and on other terms which were unreasonable and inadmissablo.

The answer of tho defendant seta forth that on the 21st of October, 1847, he had a settlement with Mrs. Dawson of all tho charges which she had against him, and on that occasion she fell in his debt in the sum of $40.82, for which she gave her note, and he proffers to exhibit tho said note. Tho defendant denies that ho agreed to take any part of Mrs. Dawson’s money and pay interest, but says he always made known to her he would not hold, keep, or use her funds on these terms, hut would loan out the same whenever he had a safe opportunity of so doing. The defendant further answering, says that he furnished the said Temperance, at different times, a list of her notes in his possession, in order to enable her to give in the amount of interest for which she was taxable under tbe revenue laws of the State, one of which he says was furnished shortly before her death; that these papers had come to the possession of the plaintiff, and ho prays that ho may be compelled to produce the same. Tho defendant states the balance in his hands, and proposes to pay over the same to the plaintiff. He says he has been at great trouble and expense in the management of the business undertaken by him, and ho thinks, he is entitled to compensation.

There was replication to the answer, and by consent, of parties, it was referred to Messrs. B. II. Gmitli and W. JL Smith, as commissioners. So state the account between the parties, and it was ordered that each party have leave to examine tire other on oath on written interrogatories, and that the defendant file in the office of the clerk and master, all papers in his possession relating to the business affairs of T. W, Dawson. The commissioners reported a balance against the defendant of $3.200.22. The commissioners set out with a charge against the defendant founded on a paper which is referred to as (1) which is as follows:

PAPKE (1.)

“ Mrs. T. W. Dawson has deposited in my hands, for safe keeping the proceeds of her crops for several years, with directions not to loan it out, but I have concluded it would be best to violate her orders, and within the last fourteen months I have loaned out four thousand four hundred and fifty-eight dollars, which I suppose she should give in as a part of her taxable property. Jos. J„ Williams.

July 18th, 1853.”

This is the basis of the first item in the account stated, which is “1853, July 18th. Dr. the defendant to $é.é58.” The second item is interest on the same to 16th of April, 1860, $1811.43. The next item is dated June 15th, 1854, and is for $1000 with interest on the same to 16th April, 1860, and is based upon the following

VAPISB MARKED (2.)

“ Add one thonsaud dollars to your list of money given in last year loaned out. June, 1854.

JOS. ’WILLIAMS.”

The defendant excepts to these items, and says that the account ought not to begin in 1853, but in July, 1854, and that the 3d item ought not to bear date of June, 1854, but of June, 1855; and ho produces the following; papers marked 8 and, 4, to substantiate that exception :

I’AUEBS (8.)

«I hold in my care, for Mrs. T. W. Dawson, the following notes of hand; one note drawn by X. Taylor, for $200, with interest from 8th day of Oct. 1851, $ 200.00

Do. S. Ward, Eryant Bennett, B. Williams, for ’

$1.412.25, ’ 1.412.25

Int. from 12th June, 1852,

Do. Bryant Bennett, for $759.09. Int. from 10th

Sept. 1853, 759.09

Do. Jordan & Howell note, $281.41. Int. from

14th Oct. 1853, 281.41

Miles Davis and J. Upton note, $1000. Int.

from 20th Oct. 1853, 1000.00

A. & H. Harass, Norfolk, $515.11. Int. from 2d July, 1853, 515.11

$4.458.77

4.458.77

6

267.52.62 . Jos. J. Williams.

PAPER (4.)

“ State of North Carolina, Halifax county.

I, Joseph H. Whitaker, clerk of the Court of Pleas and Quarter Sessions, for said county, do hereby certify that on examining the records, in my office, I find that Mrs. Temperance W. Dawson listed in the year 1854, two hundred and sixty-eight dollars ($268) in annual interest, and in 1855, she listed three hundred and twenty dollars ($320,) and in 1856, she listed four hundred and fifty-eight dollars, ($458.) Given under my hand this 11th day of April, 1860.” (Signed by the clerk.)

The defendant also files letters from A. & II. Harris, dated in Sept. 1854, acknowledging a balance of upwards of $500. From all which, he insists that the error complained of, is apparent.

The only other exception raising a question, was one by the plaintiff, objecting to tbe allowance of commissions to the defendant, and refusing to charge interest’ upon the interest accumulated in his hands, and which defendant was warned would be insisted on, unless the notes were handed over to the administrator, or by himself renewed.

These exceptions were set down for argument, and heard at this term.

B. F. Moore, for the plaintiff.

Badger, Ba/rnes and Ooniglcmd, for the plaintiff.

PbaksoNj C. J.

The first exception of the defendant is allowed. The commissioners did not duly appreciate the technical force which is given to an answer when directly responsive to the allegations of the bill, or to an interrogatory put in the bill, or on special examination. Such answer is to be taken as true irnless it be proven not to be true by the oaths of two witnesses, or of one witness with cox-roborating circumstances, amounting to the force of another witness; or by some other kind of evidence which is entitled to the weight of two witnesses on oath.

In this case there was no witness, and the plaintiff, to disprove the.answer, relied on the evidence furnished by papers marked (1) and (2.) As an explanation of this seeming contradiction, the defendant makes the allegation of a mistake in both of these papers in inspect to the dates, and avers that the proper date of the paper marked (1) should be “ 1854,” instead of 1853, and that of the paper marked (2) “1855” instead of 1854, and to show this mistake, he produces papers marked (3 and (4.) By an inspection of the papers marked (1) and (3) it is manifest that the one was made from or with a direct reference to the other1, and taking into consideration the fact that papers (1) and (2) do not purport to have been made for the purpose of being the basis of a cha/rge as between Mrs. Dawson and her agent, the defendant, but simply for the purpose of furnishing her the amount to be listed by her as taxable interest, in which view, it was not necessary for the paper to have a date, (as it was to be acted on at the time,) and, of consequence, but little attention would be given to the accuracy of the date, we accept this explanation as entirely satisfactory, and reject the conclusion of the commissioners, because it involves the inference not only that Mrs. Dawson wilfully neglected to list her taxable interest at the proper time, but that in 1854, having the papers (1) and (2) before hei-, she knowingly took a false oath in listing the amount called for by paper (1,) and omitted the additional amount called for by paper (2,) and the further infei’ence that the defendant has sworn falsely in his answer, and also, has been guilty of manufacturing evidence, to wit, the paper marked (3) under circumstances equivalent to perjury. ¥e will here remark that the recital in paper (1) that Mrs. Dawson had directed the defendant not to loam out Tiev money, is made obviously for the purpose of furnishing her with an excuse for not having listed any taxable interest in the year 1853, and when we find her in 1854 listing her taxable interest on the basis of that paper, the fact that it was made out in 1854, is manifest without calling in aid the weight to which the answer is entitled.

The paper marked (3) is the proper basis of charge in stating the account, and that furnishes the respective dates from which interest should be calculated, and disposes of the 6th exception on the part of the plaintiff

The second exception of the defendant is overruled, and the first exception of the plaintiff is allowed.. The defendant having undertaken to transact the money matters of Mrs. Dawson, on the footing of being a neighbor and a relation, and without making any stipulation or intention of making a charge for it, has no right, after her death, to claim remuneration. It may be, if ho had apprised her of his intention to charge for Jus cervices, she would not have employed him; but if is sufficient to eay, as ho undertook to do it gratuitously, there is no principle upon which a promise by her to pay for his services can he implied. It may he that he expected she would make a will and give him a legacy. If so, his disappointment is no more than what all persons having expectations of the kind are h'able to. Nor can we yield our assent to the position, that although he did not intend to make a charge, still, as her administrator requires him to give an account of his agency, he, on that footing, becomes entitled to compensation. We do not see how this follows. It is to be presumed that he was, at all times, while she lived, ready and willing, if called on by her, to come to a settlement, and make out a statement showing how matters stood between them, and he was under a similar obligation to do so when called upon by her personal representative, upon whom the law imposed the duty of requiring a settlement. This case is distinguishable from that supposed by the defendant’s counsel on the argument; a guardian strikes a rough balance without charging commissions, and proposes to close the matter on that footing; if it is declined, and he is required to go into a settlement, produce regular vouchers, and acquit himself of any neglect in failing to collect debts and matters of that kind, whereby he is chargeable although he has made no gain, he may well, then, insist upon an allowance of commissions ; because he is by law expressly entitled to charge commissions; but there is no statute by which the defendant is entitled to commissions, and in the absence of a contract to that effect, he was not so entitled, and, therefore, could not, like the guardian, propose to waive his right to commissions, provided he was not held to a strict accountability.

The second exception of the plaintiff is withdrawn.

The third exception is allowed. As there was a large amount of unproductive interest due upon the notes he held, belonging to the plaintiffs intestate, it was his duty upon being warned to pay over the notes, or have them renewed, to have done so, and the loss of interest upon this interest, incident to his neglect and refusal, should fall on him by striking the balance at the time the bill was filed.

The 4th exception is overruled, and also the 5th for the same reason: The answer being responsive, is evidence for the defendant, and supports the claims covered by these exceptions.

There will be a reference to have the account stated according to this opinion.

Per, O orí AM, Decree for m account.