Smith and Others v. Hollett.

they did locate, establish, and construct said railroad from said city of Indianapolis, by way of Brownsburg, and within one quarter of a mile of the town plat of the town of Brownsburg, and Jamestown, to the town of Crawfordsville, and they are pushing rapidly to completion said railroad from said town of Crawfordsville, by way of Covington, to the said town of Danville; that for a long time, to wit, from the day of May, 1869, they have had regular trains of cars running on said railroad, so as aforesaid located, established, and constructed, from said city of Indianapolis to the said town of Crawfordsville, of which said defendant had notice; and they claim that as such assignees of said Lord and said railroad company they have performed all the conditions and stipulations in said instrument in writing, and are entitled to have and receive of and from said defendant the said sum of money therein specified; that the same is due and payable, but that the defendant has not paid the same, &c.; wherefore, &c.

There was a demurrer to the complaint, for the reason that the same did not state facts sufficient to constitute a cause of action, which was sustained; and there was a final judgment for the defendant. The plaintiffs appeal to this court, and have assigned for error the sustaining of said demurrer to the complaint.

The defendant must be held to the performance of this contract according to the intention of the parties thereto. This intention is to be discovered by a consideration of all its parts. If it had been intended that Lord only, could entitle himself to the promised sum of money by constructing the road, and that no one else could be substituted in his place, it would not have been said "that said sums of money are to be paid when the said Henry C. Lord or his assigns shall have completed said road from Indianapolis to the town of Crawfordsville," &c.; and then, in the body of the obligation the agreement is to pay to Henry C. Lord or his assigns. There is nothing in the substance of the transaction which indicates in any way that it was regarded as essential that Mr. Lord should construct the road. The ob

Smith and Others v. Hallett.

ject seems to have been to secure the construction of the road upon the specified route, and when that was done, it seems to us that the defendant had got what he contracted for, and became liable to pay the amount which he had promised.

But it is insisted that the statement in the assignment of Mr. Lord, that he had abandoned the construction of the railroad, is an insuperable obstacle in the way of a recovery. We think not. It simply shows that the time had come, contemplated by the parties to the contract, when he might devolve upon "his assigns" the obligations and rights which he had assumed or was entitled to under the agreement.

Again, it is claimed that the subscription was, on the part of the defendant, only a proposition which, to be binding upon him, must have been accepted and made binding on the other party; that there can be no contract without a proposition on one part and the acceptance of it on the other. Conceding that the proposition or agreement to pay the amount named might have been withdrawn by the defendant, before there was a formal acceptance of it, or the work was constructed, which we do not decide, still it does not appear that there was any such withdrawal. For aught that appears, he stood by and allowed the work to go on to completion, without objection, knowing that those engaged in the work were relying on his promise for so much of their pay.

As no time was specified within which the railroad was to be constructed, the law, as in other cases, doubtless required it to be done in a reasonable time. But what would be a reasonable time in which to construct such a work may not be purely a question of law. It may depend on many facts and circumstances, and might be a proper question for a jury, under the direction of the court. We know that considerable time is generally required to secure the means necessary to justify the commencement of such a work, and also to construct the work after it has been commenced. We cannot say that in this case there was unreasonable delay.

Hancock, Administrator, v. Morgan and Another.

The judgment is reversed, with costs to the appellants; and the cause is remanded, with directions to overrule the demurrer to the complaint and require the defendant to plead thereto.

S. C. Willson, L. B. Willson, P. S. Kennedy, C. C. Nave, and C. A. Nave, for appellants.

L. M. Campbell, for appellee.

HANCOCK, Administrator, v. MORGAN and Another.

ADMINISTRATOR.—Accord and Satisfaction.—An administrator may receive in satisfaction of a note payable to him as administrator a claim, existing in account, of the maker against a third person; but the maker cannot be so released if there be no assignment of said claim to the administrator, and no agreement by said third person to pay the administrator, and said note be retained by the administrator.

APPEAL from the Washington Circuit Court.

DOWNEY, J.-The appellant sued the appellees on a promissory note payable to the plaintiff as administrator, before a justice of the peace. The defense set up was that the defendants had transferred to the plaintiff, in satisfaction of the note on which the suit was brought, a claim, or debt, due to them from one Beacham Hancock, and that the plaintiff had received the same in satisfaction.

There was a trial before the justice of the peace by jury and a verdict and judgment for the defendants. The plaintiff then appealed to the circuit court, where there was another trial by jury, with a similar result.

A motion for a new trial was made, for the following reasons: first, the court erred in overruling the plaintiff's demurrer to the first paragraph of the defendants' answer (?); second, in admitting evidence of the plaintiff having received from the defendants a debt due by William B. Hancock to

Hancock, Administrator, v. Morgan and Another.

John B. Morgan (defendant), in payment of the note sued on; third, in refusing instruction number one asked by the plaintiff; fourth, in instructing the jury that the plaintiff could recover the debt of William B. Hancock due John B. Morgan, in payment of the note sued on; fifth, the verdict is contrary to law; sixth, the verdict is contrary to the evidence. This motion was overruled, and judgment was rendered on the verdict.

The plaintiff appeals to this court, and here assigns for error, first, overruling the demurrer to the first paragraph of the answer; second, admitting evidence of the receipt by the plaintiff from the defendants of the debt due from William B. Hancock to the defendant John B. Morgan, in payment of the note on which suit was brought; third, in refusing the first instruction asked; fourth, in giving instruction that the plaintiff could recover the debt due from William B. Hancock; fifth, in overruling the plaintiff's motion for a new trial.

With reference to the first alleged error, the record shows that a motion was made to strike out the first paragraph of the answer, and that it was overruled. There is a demurrer copied in the transcript, but there does not appear to have been any action of the court on it. Perhaps the demurrer is intended where the motion is mentioned.

The said paragraph of the answer is as follows: "Said defendants files this as his set-off, and pleads payment of said demand in full, and that said John Hancock, administrator of said estate, did take a debt on Beacham Hancock for the payment of said note, and said Beacham Hancock was indebted ninety dollars and twenty-one cents, and said it was paid to his satisfaction, and that said defendants could have their note at any time; was done in the fall of 1866."

Regarding this as setting up a satisfaction of the note on which the suit was brought, by the transfer of the debt or claim due to the defendants from Hancock, we think it was good, in substance, though certainly, not a very good specimen either of pleading or of grammar. But this is not

Hancock, Administrator, v. Morgan and Another.

a question of much practical importance in the case. The suit having been commenced before a justice of the peace, there was no necessity to plead payment or accord and satisfaction. 2 G. & H. 585, sec. 34.

The next objection is, that the court should not have received the evidence of the agreement on the part of the plaintiff to take the claim on William B. Hancock in satisfaction of the note on which the suit was brought. The ground of this objection was that the administrator had no legal right or power to make such an agreement, and could only receive money in payment of the debt due to him. This is the same point involved in the refusal of the court to give the first instruction asked by the plaintiff, which was, that an administrator cannot receive anything except money in payment of a debt due the estate of which he is administrator.

The court admitted the evidence, and on this point instructed the jury as follows: "It is true, as a general rule, that an administrator, upon the sale of his intestate's property, is not authorized to receive anything but money; but he cannot commit a fraud on his debtor, he cannot be permitted to take, in payment of a note, a claim on a good man, and then wait with it till that man becomes insolvent, and then say, I had no right to make any such agreement; that might work a fraud, because the other man might have collected his money before his debtor became insolvent. If the administrator lost the money by waiting on Beacham, then he must make it good to the estate," &c. There was an exception to the instruction given, and to the refusal to give that which was asked.

In Chandler, Adm'r, v. Schoonover, 14 Ind. 324, this court held, that, as a general rule, an administrator, upon a sale of the intestate's property, cannot receive in payment anything but money.

The court gave this to the jury as the law, but, by adding to it, authorized the jury to depart from the rule on the ground of supposed fraud on the part of the plaintiff.