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Trust Company as a party. We are of opinion that appellant is shown by the record ta have such an interest in the subject matter in litigation and in the final judgment as entitled him to prosecute a proper appeal, and that the first ground of appellee's motion cannot be sustained. Brooks v. Doxey et al., 72 Ind. 327.
The judgment from which this appeal was taken was rendered against the Central Trust Company, as receiver. The receiver represents the interests of creditors, as well as those of the embarrassed debtor, and an orderly administration of his trust requires such receiver to be a party to every proceeding affecting the estate in his custody. The right of appeal is wholly statutory, and our statutes authorizing appeals require all persons named in and affected by a judgment from which a vacation appeal is taken to be made parties. The Central Trust Company, as receiver, was a necessary party to this appeal, and failure to join it is ground of dismissal. Moore v. Ferguson, 103 Ind. 395, 72 N. E. 126 ; Crist v. Wayne Ass'n, 151 Ind. 245, 51 N. E. 368; Stults v. Gibler, 146 Ind. 501, 45 N. E. 310; Roach v. Baker, 145 Ind. 330, 43 N. E. 932, 44 N. E. 303; Shuman v. Collis, 144 Ind. 333, 43 N. E. 257; Lee v. Mozingo, 143 Ind. 667, 41 N. E. 454, and cases cited.
The appeal is accordingly dismissed.
lant excepted. A part of the exception was stricken out on appellee's motion, for which error the judgment was reversed by this court. Polk v. Johnson, 160 Ind. 292, 66 N. E. 752, 98 Am. St. Rep. 274. Appellee's resignation was accepted, and the Central Trust Company appointed and qualified as his successor, and upon the return of the cause to the court below appellee replied to appellant's exception by general denial and by affirmative allegations. Appellant's demurrers to the affirmative paragraphs of reply were overruled. A trial upon the issues so formed resulted in the following judgment: “And the court, having duly considered the evidence in the case, does now find that the exception filed by the said James T. Polk to the amended final report of Grafton Johnson, receiver, heretofore filed in the case, contesting an allowance for compensation in the amount of $20,000, asked for by said Johnson in said report, as to the sum of $10,500, part and parcel of said $20,000, said exception ought to be, and the same is hereby, sustained, but that as to $9,500, the remaining part and parcel of said claim, said exception is overruled; and the court doth further find that compensation to the amount of $9,500 ought to be, and the same is hereby, allowed to said Grafton Johnson for his services in said receivership, in addition to what has heretofore been allowed; and it is further ordered, adjudged, and decreed by the court, that said Grafton Johnson be, and he is hereby, allowed the sum of $9,500 as additional compensation in full for services rendered in said receivership, and the present receiver, the Central Trust Company of Indianapolis, Ind., be, and it is hereby, ordered and directed to pay said sum of $9,500 to said Grafton Johnson as such compensation, taking his receipt in full therefor. And it is further ordered that the costs of the proceedings upon the exception to said report be paid out of the funds of the trust.” Appellant prosecuted an appeal from this judgment to the Appellate Court (76 N. E. 634), which court overruled appellee's motion to dismiss the appeal and affirmed the judgment. A further appeal to this court has been taken, and it is urged that the circuit court erred in overruling appellant's demurrers to the affirmative paragraphs of reply and in overruling his motion for a new trial.
Appellee has properly presented his motion to dismiss the appeal, and insists that the same should be sustained, for the reasons (1) that appellant is not the real party in interest, and (2) because there is a defect of parties, in that the Central Trust Company, the receiver against whom the judgment was entered, has not been joined as a party.
a party. The motion to dismiss challenges our jurisdiction, and demands primary consideration. A term time appeal was prayed, but not perfected, and this is a vacation appeal, in which no effort has been made to join the Central
(167 Ind. 569) HAYES et al. V. SHIRK. (No. 20,802.) (Supreme Court of Indiana. Oct. 3, 1906.) 1. APPEAL-TIME OF PERFECTING-NATURE OF ACTION-STATUTES.
An action against an executor on his promise to pay assessments for a street improvement levied against the land of his testator, continued after his death, against his representative, as authorized by Burns' Ann. St. 1901, 8 272, is an ordinary action at law, and an appeal from the judgment is regulated by sections 644, 645, authorizing appeals from final judgments if taken within one year, and not by sections 2609, 2010, relating to appeals from decisions growing out of any matter connected with a decedent's estate. 2. SAME-RECORD-CONTENTS.
A præcipe directing the clerk to prepare and certify for use on appeal a transcript of the case, directed him to make a transcript of the papers and orders found in the order book at pages designated. In the transcript appeared a copy of the final judgment entitled, and in terms, in conformity to the previous rulings of the court. Held, that though the final judgment was not called for in terms, the præcipe was sufficient, under Acts 1903, p. 340, c. 193, § 7, authorizing the filing of a præcipe for a transcript, and requiring the clerk to include in the transcript every entry called for, to war rant the clerk in transcribing it, if the same was found on one of the pages designated, and, as the copy of the judgment was made a part of the transcript, the court, on appeal, will presume that it was so found. 3. SAME.
A præcipe directing the clerk to prepare and certify for use on appeal a transcript of the case directed him to make a transcript of enumerated orders, "together with the second and third paragraphs of the complaint." The
1 Rehearing denied.
clerk inserted paragraphs of the complaint executrix, was substituted as the sole party which, as shown by the record, were originally defendant, and filed a separate demurrer to filed as the second and third paragraphs, and were thereafter so designated. There were no
the additional second and third paragraphs such papers as amended second and third para of the complaint. The demurrers were susgraphs of the complaint. In entering the mar tained, and, the plaintiffs refusing to amend, ginal notes, the paragraphs were designated as
judgment was, on April 27, 1901, rendered the “second amended paragraph” and the "thira amended paragraph.” Held that, as the mar
against them for cost. On February 13, 1905, ginal, notes were not a part of the record, the more than 100 days, but within one year, second and third paragraphs of the complaint after the rendition of said judgment, the recwere properly made a part of the transcript, under Acts 1903, p. 340, c. 193, § 7, authorizing
ord of this appeal was filed in the Appelthe filing of a præcipe for a transcript, and
late Court. No appeal bond was filed withrequiring the clerk to include therein every in 10 days from the rendition of said judgentry called for.
ment, and no order of the Appellate, or this 4. SAME-STATEMENT OF RECORD IN BRIEFRULES OF COURT--COMPLIANCE.
court was made within one year after such Supreme Court Rule 22, subd. 5 (55 N. E. decision granting the appeal. Upon the forevi), requires the appellant to give in his brief going facts appellee makes the point that the a concise statement of so much of the record appeal herein should be dismissed, because as presents the errors relied on. A case came up on the sufficiency of the paragraphs of the
not taken in compliance with sections 2009, complaint, based on an agreement to waive ir 2610, Burns' Ann. St. 1901. This contention regularities in an assessment for a street im calls upon us to decide whether the appeal is provement, and pay the assessment in consider
governed by sections 614, 645 of the Civil ation of the right to pay the same in installments. Appellant stated in his brief that each
Code (Burns' Ann. St. 1901, pp. 304, 306), paragraph of the complaint set up in detail or by the special provisions of the decedents' the various steps which were taken in the as estates act (sections 2609, 2610, supra), which sessment of the property, and the foreclosure and sale of the property, and the inadequacy
require all appeals "growing out of any matof the proceeds to pay the assessment. The ter connected with a decedent's estate" to a written waiver and promise to pay the assess perfected within a hundred days unless othment was made a part of each paragraph and filed therewith. Held, that appellant sufficiently
erwise ordered by the court. This action complied with the rule to authorize the Ap had its origin in these facts. Milton Shirk, pellate Court to consider the sufficiency of the as executor of E. H. Shirk, held the record complaint.
title to certain lots abutting on Kentucky [Ed. Note. For cases in point, see vul. w,
street, in the city of Kokomo. In the imCent. Dig. Appeal and Error, $ 3092.]
provement of this street, under the Barrett 5. EXECUTORS-ESTOPPEL-WAIVER OF OBJECTIONS TO ASSESSMENT FOR STREET IM.
law, assessments of special benefits were PROVEMENTS—INDIVIDUAL LIABILITY.
lodged against the lots, and Milton Shirk as Real estate when assessed for a street im. executor of E. H. Shirk, executed a written provement stood in the name of the executor
waiver of irregularities, and promised to pay of the deceased owner. After the confirmation of the assessment, and within the time given the assessments, and secured thereby, for the by the statute, an instrument, reciting a waiver estate of E. H. Shirk, the right to pay the asor irregularities in the assessment, and contain
sessments in 10 annual installments. ing a promise to pay the same in installments, was executed by the executor, who had no au
Appellants, as the owners of the defaultthority under the will or by the court to do so. ed bonds issued against said lots for the imOne purchased the street improvement bonds on provement, foreclosed, and sold the lots, and the faith of the executor's promise. Held, that the agreement, though void as against the estate
not realizing enough to pay the costs, and of the deceased owner, was valid, as against
full amount of the assessments, instituted the estate of the executor.
this action on said contract of waiver against [Ed. Note. For cases in point, see vol. 22. Shirk in his individual capacity, to recover Cent. Dig. Executors and Administrators, § 465.]
the balance. It is manifest that the decision Appeal from Circuit Court, Fulton County; complained of did not "grow out of any matHarry Bernetha, Judge.
ter connected with decedent's estate” but out Action by William J. Hayes and others
of an alleged breach of contract with Milagainst Milton Shirk, continued after his
ton Shirk. The suit was an ordinary acdeath against Ellen W. Shirk, his executrix.
tion at law under the Code. The circuit court There was a judgment for defendant, and
had acquired jurisdiction of the person, and plaintiff appeals. Cause transferred from
subject-matter, in the lifetime of Shirk, and Appellate Court under Burns' Ann. St. 1901,
his death did not defeat that jurisdiction. § 1337u. Reversed and remanded.
Section 272, Burns' Ann. St. 1901, provides I. Conner, Kirkpatrick & Morrison, and that “no action shall abate on the death of Willits & Voorhis, for appellants. Antrim a party,” but the court shall, upon motio 1, & McClintic and Holman & Stephenson, for allow the action to proceed by or against the appellee.
representative of the deceased party. Under
this statute, it has been held, in cases where HADLEY, J. Appellant instituted this ac an executor or an administrator has been tion against Milton Shirk to recover a per substituted for a deceased party, that an apsonal judgment upon contract. Before an peal in such case will be governed by the swer was filed Milton Shirk died. His Civil Code, and not by the special provisions death being suggested, Ellen W. Shirk, bis of the act relating to the settlement of de
cedent's estates. Holland v. Holland, 131 one, in entering the marginal notes requirInd. 196, 200, 30 N. E. 1075; May, Ex'x v. ed by the rules of this court, on appropriate Hoover, 112 Ind. 455, 14 N. E. 472, and cases pages, noted in red ink, on the left margins cited. This appeal having been perfected as follows: "2nd Par. Amended Comwithin one year after the rendition of the plaint”; “3rd Par. Amended Complaint"; judgment, must be held timely.
and these memoranda furnishes the only Appellee further contends that there is ground for the claim that amended second nothing for decision, because the complaint and third paragraphs of complaint were filed. upon which the only question arises, and also It is hardly necessary to add that these marthe final judgment, are not in the record. ginal notes were not part of the record, and What purports to be the additional second serve no other purpose than point the exand third paragraphs of the complaint-those aminer to the particular contents of the to which the demurrers were sustained and a pages. Giving to the statute concerning prafinal judgment—are present in the record, and cipes and transcripts in appeals (section 7, it is claimed that they are not properly there c. 193, p. 340, Acts 1903), a liberal construcbecause not called for in the præcipe, nor
tion, as we must, and there remains no doubt certified by the clerk. After properly en
but the præcipe in question is sufficient to titling the cause the præcipe directs the clerk sustain the controverted parts of this record. to "prepare and properly certify for use on Appellee further and very earnestly conappeal to the Appellate Court, a transcript tends that this appeal should not be considof the following papers, orders, and proceed ered, because of appellant's noncompliance ings, filed and had in said cause. First, the with the requirements of the fifth division entry of said cause upon the issue docket at of rule 22 (55 N. E. vi), in the preparation page 209. * Fifth, the entry at page
of their brief, in that they failed to set 101 of Order Book 6, Sixth, at page 152 of
forth the contents of their complaint. By the same Order Book, and also at page 175 of provision invoked, the appellant is required same Order Book. Seventh, the entry at in his brief to give "a concise statement of page 246 of the same Order Book. Eighth, so much of the record as fully presents at page 279 of the same Orber Book. Ninth, every error and exception relied on." The at page 285 of the same Order Book. Tenth, first paragraph of complaint was dismissed, this pracipe, together with the second and and the case comes up solely upon the suffithird paragraphs of the plaintiff's complaint, ciency of the second and third paragraphs the demurrers thereto, the rulings thereon, to state a cause of action against Milton and exceptions thereto.” The clerk certifies Shirk, personally, based upon his written "that the above and foregoing transcript con agreement as executor of E. H. Shirk (under tains full, true, and complete copies of the the Barrett law), to waive all irregularities, following papers, orders, and proceedings and pay the assessment in consideration of filed, and had in said cause," and appearing on the right to pay the same in 10 annual inthe particular pages, set forth in detail, of stallments. The paragraphs are alike, exOrder Book 6, as designated by the præcipe. cept that the second is silent as to whether In the transcript so certified, at the proper
Shirk was authorized by the will, or by the place, appears the copy of the final judgment, court, to execute said agreement, and the entitled, and in terms, in conformity to the third expressly charges that he was not previous rulings of the court. It is true that authorized either by the will, or by the court, the final judgment is not called for, in terms, to execute it. In ruling on the demurrers, but the entries in said cause, appearing on the court held that, in executing the agreecertain pages of the Order Book, are, and the ment as executor, he did not make himself præcipe, though informal and unskillfully. personally liable. This ruling of the court drawn, was sufficient, we think, to warrant is the only "error and exception relied on." the clerk in transcribing the entry of the So much of the record, then, as fully presents final judgment, if the same was found on this question, is all that is required by the one of the pages designated, and, as the copy rule. When the question arises upon the of the judgment is present in the record, we pleading, it is seldom necessary, under the must presume that it was so found. It is rule, to set out the particular pleading in clained that the record discloses that amend full, though it may be done without violated second and third paragraphs of complaint ing the rule. It is however, always highly were filed, and that the calling for the sec proper to omit useless matter, and it may ond and third paragraphs of the complaint be said that the most accurate compliance did not authorize the clerk to insert in the with the rule is realized when there is cartranscript copies of the amended paragraphs. ried into the brief only such averments, and It is shown by the record that these pleadings parts as will enable the judge, not having were originally filed as additional, second, the record before him, to fully grasp and and third paragraphs of the complaint, and understand the controverted point. The two were then and thereafter, in every step of paragraphs of complaint, in this case, cover the proceedings, so denominated. There 30 printed pages of the record, the great were no such papers as amended second and bulk of which being of much more assistance third paragraphs of complaint filed. In the to the court out of the brief than in it. To preparation of the transcript, however, some show that the waiver sued on related to
valid assessments, it is stated in the brief, in the proper place, though not under a separate heading, that each paragraph of the complaint sets up in detail all the various steps which were taken in the assessment of property abutting on said street, as required by the Barrett law, from the resolution declaring the necessity for the improvement to the confirmation of the assessments by the council, the amount thereof, the default in payment, the foreclosure and sale of the Shirk property, the application of the proceeds, the inadequacy of the proceeds to pay the assessments. The written waiver and promise to pay the assessments is also made a part of each paragraph and filed therewith.. It is to be conceded that there should have been more care and accuracy observed in the statement of the contents of the complaint, particularly as to the contract of waiver, but we think enough is given to effect a substantial compliance with the rule, and the sufficiency of the complaint will therefore be considered.
The suit is based upon the following instrument: “We, the undersigned, owners of property abutting upon Kentucky street, from Bernard to Morgan streets, in Kokomo, Ind., severally promise and agree, in consideration of having the right to pay in installments, our respective assessments for the improvement of said Kentucky street, as provided for in Ordinance No. 785, that we will not make any objection to any illegality, or irregularity, as to our respective assessments, and will pay the same when due, with interest thereon at such rate, not exceeding 6 per cent., as shall by ordinance or resolution of the common council of the city of Kokomo, be prescribed and required. [Signed] Milton Shirk, Ex. for E. H. Shirk. 408 ft. Lot 91, K. & S. Add. Amount $987.36." The real estate when assessed stood of record in the name of Milton Shirk, executor of E. H. Shirk. It so appeared upon the assessment roll. After the approval and confirmation of the assessments by the city council, within the time given by the statute, the above instrument was executed, not only by Mr. Shirk, but by divers other abutting lotowners. It is held by the courts of this state that an agreement like the above, entered into by . property owner pursuant to section 7, c. 118, p. 243, Acts 1889, as amended 1891 (section 4294, Burns' Ann. St. 1901), to secure the right to pay an assessment in installments, is a new and independent undertaking, upon a sufficient consideration, and imposes upon the person executing it a personal obligation to pay any part of an assessment that may remain unpaid after foreclosure and sale of assessed property. Wayne County Bank v. Gas City Land Company, 156 Ind. 662, 59 N. E. 1048; Jones Company v. Perry, 26 Ind. App. 554, 57 N. E. 583. It is a familiar doctrine that when an agent discloses his principal and acts within the scope of the agency, he does not
render himself personally liable, unless so stipulated in the agency contract. The powers, duties, and obligations of an executor or administrator with respect to the estate, like those of a trustee or public officer, are defined, and limited by will or statute. He has no general or implied powers beyond those necessary to effectuate the powers expressly conferred. In the absence of a testamentary provision to the contrary, he is entitled, by operation of law, to the possession of the personal property of the estate. It goes to him in trust for the specific purpose of adjusting and settling all contracts, claims, and obligations of the decedent that affect the assets to be administered. He has no personal interest in the assets, and no more power than a stranger to make a new and independent contract imposing a charge upon them even for the benefit of the estate. DeCoudres v. Union Trust Co., 23 Ind. App. 271, 58 N. E. 90, 81 Am. St. Rep. 95; Cornthwaite v. National Bank, 57 Ind. 268.
In other jurisdictions, independent contracts originating with, and purporting to be executed by, an executor or administrator, officially, for the sole benefit of the estate, and intended to bind only the estate, have been held void as to the estate, and personally binding on the officer, in the following cases : Upon an acceptance. Perry v. Cunningham, 40 Ark. 185; see, also, Carter v. Thomas, 3 Ind. 213. Upon covenants of title inserted by him in his conveyance of real estate. Sumner v. Williams, 8 Mass. 162, 5 Am. Dec. 83; Osborne v. McMillan, 50 N. C. 109. For the price of horses purchased for use in carrying on farming for and on intestate's estate. Rich v. Sowles, 64 Vt. 408, 23 Atl. 723, 15 L. R. A. 850. For money borrowed to pay debts. McFarlin v. Stinson, 56 Ga. 396;
; . Lynch v. Kirby, 65 Ga. 279; Dunne v. Deery, 40 Iowa, 251; Christian v. Morris, 50 Ala. 585; White v. Thompson, 79 Me. 207, 9 Atl. 118; Winter v. Hite, 3 Iowa, 142; Bank v. Collins, 17 Mont. 433, 43 Pac. 499, 52 Am. St. Rep. 695. “This rule must be regarded as well settled,” says Allen, J., in Austin v. Monroe, 47 N. Y. 360, "that the contracts of executors, although made in the interest, and for the benefit of the estate they represent, if made upon a new and independent consideration
are the personal contracts of the executor, and do not bind the estate.” “An executor or administrator is bound individually, and not otherwise, by his promise to pay a debt of the decedent, though he promised to pay as 'executor or administrator,' because he has no power to bind the estate by contract.” 11 Amer, and Eng. Enc. of Law (2d Ed.) p. 914; 18 Cyc. p. 247, 249; Moody v. Shaw, 85 Ind. 88; Holderbaugh v. Turpin, 75 Ind. 84, 39 Am. Rep. 124.
The facts alleged lead us to this feature of the case. It is alleged in the complaint that Shirk, executor, had no authority under the will, or by order of the court, to execute the
contract sued on. The demurrer admits this virtue of a right granted by statute. The averment to be true. Unlike the personalty, execution of such waiver and personal oblireal property goes directly to the heir, and gation by any one other than the owner the personal representative has nothing what would not satisfy the requirements of the ever to do with it, or control over it, except statute, or authorize the issuance of improvewhen needed to pay debts, or it is directed by ment bonds, or estop the holder of the lien the will. So, when the assessments in con from collecting the assessment at any time. troversy were lodged against the lots de If the holder of the lien cannot be bound by scribed in the complaint, the lots belonged to a waiver executed by a volunteer, then the heirs, and the assessments accruing after there could be no consideration for the perthe death of E. H. Shirk, were never a debt sonal agreement of such volunteer promisor. or obligation against the testator, nor his These facts take this case out of the class in estate. Hence of no concern to his executor. which an administrator or executor may bind The question, therefore, comes to this: The himself personally upon an independent concontract being void as to the estate of E. H. tract. With this explanation, and upon the Shirk, did it operate as the personal obliga- understanding that the complaint proceeds tion of Milton Shirk? It is not sufficient to upon the theory that Milton Shirk was the relieve him from liability to show that no owner, or one of the owners of the real estate part of the consideration for the promise assessed for the improvement, at the time he moved to him personally, or to his use. The executed the instrument sued on, I concur in law grants to the citizen the privilege of con the result reached in the opinion of my Brothtracting for the benefit of third persons; and er HADLEY. when such a contract is fulfilled by the promise at his cost, the promisor will not be heard to say that no consideration moved to him.
(167 Ind. 139) What constitutes a valuable and sufficient
AIKEN V. CITY OF COLUMBUS. (No. consideration for a promise is thus stated in
20,664.) the text of the 6 Amer. & Eng. Enc. of Law
(Supreme Court of Indiana. Oct. 2, 1906.) (2d Ed.) p. 678: It may be said to consist 1. MUNICIPAL CORPORATIONS-TORTS-UNDEReither in some right, interest, profit, or bene
TAKINGS FOR PECUNIARY PROFIT.
A municipality voluntarily exercising for fit accruing to the party who makes the prom its own benefit the power of lighting its streets ise, or some forbearance, detriment, loss, re by maintaining an electric light system, as sponsibility, act, labor, or service given, suf
authorized by Burns' Ann. St. 1901, § 4301, fered or undertaken by the other to whom
empowering cities to light their streets with
electricity, is liable for injuries sustained in it is made." See, also, a large number of consequence of its negligence in operating the cases collated in support of the text. “It is a
system. familiar doctrine," says Woods, J., in Shaf
[Ed. Note. For cases in point, see vol. 36, fer v. Ryan, 84 Ind. 141, “that the considera
Cent. Dig. Municipal Corporations, $$ 1547,
1548.] tion of a promise need not be a benefit to the
2. ELECTRICITY-INJURIES INCIDENT TO USEpromisor, but may consist of a benefit to a
ACTIONS-COMPLAINT-SUFFICIENCY. third person, or of a detriment to the prom A complaint for the death of one coming in isee.” The street was improved and the ap
contact with a live electric light wire showed
that the fall of the wire was the proximate cause pellants purchased the bonds on the faith of
of the death and that the wire had become weak the promise made by Milton Shirk to pay the and rotten, in which respect defendant was assessments, and, under the rule of law, as
charged with negligence, but it was not alleged shown by the above authorities, his estate
that the wire fell by reason of such defective
condition. Held, that, though it was clear from must be held liable.
a reading of the complaint that that was an Judgment reversed, and cause remanded, assumed fact, the omission to so allege rendered with instructions to overrule the demurrer
the complaint insufficient on demurrer. to each the second and third paragraphs of Appeal from Circuit Court, Bartholomew complaint.
County; Marshall Hocker, Judge.
Action by Lewis Aiken, administrator, MONTGOMERY, J. (concurring). It is
against the city of Columbus. From a judg. required by section 4294, Burns' Ann. St. ment for defendant, after sustaining a de1901, as a condition precedent to the issuance
murrer to the complaint, plaintiff appeals. of street improvement bonds and the right to
Transferred from the appellate court under pay the same in installments, that the owner Burns' Ann. St. 1901, § 1337u. Affirmed. of the lot or tract of ground subject to the Jno. W. Morgan and W. W. Lambert, for Jien, shall promise and agree in writing not appellant. Francis T. Hood, Jas. F. Cox, to make any objection on account of any il Chas. S. Baker, W. H. Everroad, C. B. Cooplegality or irregularity in the assessment, and er, and C. J. Kollmeyer, for appellee. to pay the same personally. The issuance of bonds without this written waiver by the GILLETT, J. By appellant's complaint in owner of the real estate affected would be this action appellee was sought to be charged unauthorized; and the extension of the time with negligence in the management of its of payment of the assessment lien is secured, public lighting system, whereby appellart's not by a mere agreement of parties, but by intestate was killed, on his own premises,