MATTER OF RIDER. 68 MISC. (N. Y.) 270.-1910. (Surrogate's Court.) * * SEXTON, S.-On the return of the citation in a proceeding to sell real estate for payment of debts, a cited creditor, William S. Cobb, objected to the allowance of the following claims: Ella R. Theeringer, $333; Margaret Rider, $333, and William F. Rider, $333, on the ground that said claims are not valid claims against this estate. **The only question to be determined is whether the said claims of Ella R. Theeringer, Margaret and William F. Rider, who are the children of the deceased, are valid claims against the estate. The evidence shows that said Ella R. Theeringer, the administratrix, and her said brother and sister received $1,000 from insurance upon the life of their mother, which they shared equally and all of which they pooled to pay off a real estate mortgage and two promissory notes, matured obligations of the deceased. They now seek reimbursement out of the estate on the theory that, by paying these claims, they succeeded to the rights of the creditors of the estate whose claims they had paid. It is claimed by the contestant that all of these payments were voluntary and cannot be recovered back, and that this estate cannot be charged with the amount so paid. The administratrix testified that she personally paid the mortgage. with the equal contributions of herself, brother and sister and took a satisfaction of the same; that in the same manner she paid two notes, and that no demand or request of any kind had been made upon her, or at all, for payment of any of these obligations of the estate. These obligations of the estate were not paid by the administratrix, as such, but by her as an individual, acting for herself and brother and sister. No assignment of the mortgage and notes so paid was taken by her. She took a satisfaction of the mortgage and had it recorded and a receipt for the payment of one of the notes, and never has had the note. These were all obligations of this estate held by creditors. It was the duty of the representative of this estate to pay these claims as such out of estate property. By voluntarily discharging the duty of this estate, by individually paying claims against this estate, such a person cannot thereby become a creditor of this estate. ** It is an elementary principle in such actions that money voluntarily paid out by one for another cannot be recovered back. I Pars. Con. 471 et seq. In order to support such an action, it is essential that a request on the part of the person benefited, to make such payment, either expressly, or fairly to be implied from the circumstances of the case, must be proved. Add. Cont. 1055; Wright v. Garlinghouse, 26 N. Y. 539; Wellington v. Kelly, 84 id. 546; City of Albany v. McNamara, 117 id. 168; Matter of Hotchkiss, 44 App. Div. 615. I, therefore, hold and decide that the payment of claims against this estate by Ella R. Theeringer, Margaret Rider and William F. Rider were voluntarily made, hence are not legal claims against this estate and are disallowed. WOODRUFF'S CASES-3 HUNTER & CO. v. FELTON. 61 VT. 359.-1889. THE action was general assumpsit by S. N. Hunter & Co. against L. H. Felton. Pleas, the general issue and offset. Heard on referee's report, and exceptions of both parties thereto. The court overruled the exceptions to the report, and gave judgment for the defendant in the sum of $152.78, with interest to be computed by the clerk. Exceptions by both parties. Ross, J.-The referee's report with reference to items 66 and 67 of the plaintiff's specifications is somewhat meager. 1. In regard to 66, he finds that the logs had been drawn to the pond, about one-half mile from the plaintiff's mill, for the purpose of being sawed at plaintiff's mill. From this fact, and from the fact that the defendant received the lumber when sawed, and paid for the sawing without objection, it is fairly to be inferred that it was mutually understood that the plaintiffs were to take the logs from the place where they were left on the pond, and manufacture them into lumber at their mill. The logs became scattered. We must, in the absence of any facts found to the contrary, presume it was without the fault or neglect of the plaintiffs. The plaintiffs notified the defendant of this fact. He did not withdraw the understanding that they were to go forward and manufacture them, nor did he tell them that he would gather them, nor did he do so. The plaintiffs then, at considerable extra expense, gathered and manufactured the logs into lumber, and the defendant, without objection, took the benefit of this extra labor in gathering the logs. No price had been agreed upon for their manufacture. On these facts, we think, the law implies a contract and agreement on the part of the defendant to pay the plaintiffs a reasonable sum for gathering and manufacturing the logs. He paid for manufacturing them without objection or complaint. Paying for their manufacture without objection was an indorsement of their right to take the logs from the place they did, and manufacture them. If he would avoid paying for gathering the logs, he should have ignored their right to manufacture them, taking them in their scattered condition. He cannot be allowed to treat their necessary labor to bring the logs as they were then situated, into manufactured lumber, in part proper and rightful, and in part wrongful and unauthorized. He must be held to adopt or reject their work on the logs in whole. This item we therefore allow to the plaintiffs. 2. In regard to item 67, the referee finds that the defendant had a large amount of lumber piled up in the plaintiffs' mill-yard, which had remained there over a year. From other parts of the report it appears that they were paid for sawing and sticking up the lumber, and there is no claim made but that it was understood that the defendant had the right to have it remain so stuck up a reasonable time. After it had remained for over a year, the plaintiffs notified the defendant that his lumber was in their way, and that they must have the space occupied by it for their mill. It is not found that any time was specified in which the defendant must remove it, nor that they notified him that they should charge for storage, if it was allowed to remain on the mill-yard beyond the time named. Nor is it found that the plaintiffs were accustomed to charge for the storage of lumber allowed to remain too long piled up in the mill-yard. We do not think that, on these facts alone, the plaintiffs had the right to charge the defendant with what they paid for the use of other grounds, and for moving their lumber as manufactured to them. To warrant a recovery for such charges, the notice for the removal of his lumber should have been limited to a definite time, accompanied with the statement that, if his lumber was not removed by the time named, they should charge the defendant with what it cost them to secure such accommodations for their lumber as manufactured as the removal of his lumber would afford them; or, if no definite time for its removal was named in the notice accompanied with a statement of their intention to charge, it should be found that the plaintiffs waited a reasonable time for the defendant to make the removal before they procured other accommodations at his expense. On the facts reported a majority of the court do not think that the plaintiffs can recover for this item. * * BOSTON ICE CO. v. POTTER. 123 Mass. 28.—1877. CONTRACT on an account annexed, for ice sold and delivered between April 1, 1874, and April 1, 1875. Answer, a general denial. Judgment for defendant. Plaintiff alleged exceptions. ENDICOTT, J.-To entitle the plaintiff to recover, it must show some contract with the defendant. There was no express contract, and upon the facts stated no contract is to be implied. The defendant had taken ice from the plaintiff in 1873, but, on account of some dissatisfaction with the manner of supply, he terminated his contract, and made a contract for his supply with the Citizens' Ice Company. The plaintiff afterward delivered ice to the defendant for one year without notifying the defendant, as the presiding judge has found, that it had bought out the business of the Citizens' Ice Company, until after the delivery and consumption of the ice. The presiding judge has decided that the defendant had a right to assume that the ice in question was delivered by the Citizens' Ice Company, and has thereby necessarily found that the defendant's contract with that company covered the time of the delivery of the ice. There was no privity of contract established between the plaintiff and defendant, and without such privity the possession and use of the property will not support an implied assumpsit. Hills v. Snell, 104 Mass. 173, 177. And no presumption of assent can be implied from the reception and use of the ice, because the defendant had no knowledge that it was furnished by the plaintiff, but supposed that he received it under the contract made with the Citizens' Ice Company. Of this change he was entitled to be informed. A party has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent. It may be of importance to him who performs the contract, as when he contracts with another to paint a picture, or write a book, or furnish articles of a particular kind, or when he relies upon the character or qualities of an individual, or has, as in this case, reasons why he does not wish to deal with a particular party. In all these cases, as he may contract with whom he pleases, the sufficiency of his reasons for so doing cannot be inquired into. If the defendant, before receiving the ice, or during its delivery, had received notice of the change, and that the Citizens' Ice Company could no longer perform its contract with him, it would then have been his undoubted right to have rescinded the contract and to decline to have it executed by the plaintiff. But this he was unable to do, because the plaintiff failed to inform him of that which he had a right to know. Orcutt v. Nelson, I Gray, 536, 542; Winchester v. Howard, 97 Mass. 303; Hardman v. Booth, 1 H. & C. 803; Humble v. Hunter, 12 Q. B. 310; Robson v. Drummond, 2 B. & Ad. 303. If he had received notice and continued to take the ice as delivered, a contract would be implied. Mudge v. Oliver, 1 Allen 74; Orcutt v. Nelson, ubi supra; Mitchell v. Lapage, Holt N. P. 253. There are two English cases very similar to the case at bar. In Schmaling v. Thomlinson, 6 Taunt. 147, a firm was employed by the defendants to transport goods to a foreign market, and transferred the entire employment to the plaintiff, who performed it without the privity of the defendants, and it was held that he could not recover compensation for his services from the defendants. The case of Boulton v. Jones, 2 H. & N. 564, was cited by both parties at the argument. There the defendant, who had been in the habit of dealing with one Brocklehurst, sent a written order to him for goods. The plaintiff, who had on the same day bought out the business of Brocklehurst, executed the order without giving the defendant notice that the goods were supplied by him and not by Brocklehurst. And it was held that the plaintiff could not maintain an action for the price of the goods against the defendant. It is said. in that case that the defendant had a right of set-off against Brocklehurst, with whom he had a running account, and that is alluded to in the opinion of Baron Bramwell, though the other judges do not mention it. The fact that a defendant in a particular case has a claim in setoff against the original contracting party shows clearly the injustice of forcing another person upon him to execute the contract without his consent, against whom his set-off would not be available. But the actual existence of the claim in set-off cannot be a test to determine that there is no implied assumpsit or privity between the parties. Nor can the non-existence of a set-off raise an implied assumpsit. If there is such a set-off, it is sufficient to state that as a reason why the defendant should prevail; but it by no means follows that because it does not exist the plaintiff can maintain his action. The right to maintain an action can never depend upon whether the. defendant has or has not a defense to it. The implied assumpsit arises upon the dealings between the parties to the action, and cannot arise upon the dealings between the defendant and the original contractor, to which the plaintiff was not a party. At the same time, the fact that the right of set-off against the original contractor could not, under any circumstances, be availed of in an action brought upon the contract by the person to whom it was transferred and who executed it, shows that there is no privity between the parties in regard to the subject-matter of this action. It is, therefore, immaterial that the defendant had no claim in set-off against the Citizens' Ice Company. We are not called upon to determine what other remedy the plaintiff has, or what would be the rights of the parties if the ice were now in existence. Exceptions overruled.1 ii. Performance of Obligation Imposed by Law Upon Defendant. 59 N. Y. 574, 582, 585.-1875. I HAVE no doubt but that the reasonable and necessary expenses of the interment of the dead body of one deceased are a charge against his estate, though not strictly a debt due from him. The ground of this is the general right of every one to have decent burial after death, which implies the right to have his body carried, decently covered, from the place where it lies to a cemetery or other proper inclosure, and there put under ground. Regina v. Stewart, 12 Ad. & Ell. 773, citing Gilbert v. Buzzard, 2 Hagg. Consist. R. 333; see, also, Chap 'See "The Doctrine of Boston Ice Co. v. Potter," by Professor Costigan, 7 Col. L. Rev. 32; Holmes Refining Co. v. United Refiners' Co., 33 N. Y. App. Div. 62 (1898). In Barnes v. Shoemaker, 112 Ind. 512 (1887), an order for books was given by S. to P., but was filled by B. at P.'s request; after notice of this fact, S. appropriated the books and was held liable to B. for the price. For cases on the liability of the husband for necessaries supplied to the wife, and the liability of the parent for necessaries supplied to the child, see these topics in Woodruff's Cases on Domestic Relations. 'Accord, Fogg v. Holbrook, 88 Maine 169 (1895). Golden Gate Co. v. Taylor, 168 Cal. 94 (1914); 14 Col. L. Rev. 685. |