
    Chouteau et al. v. Suydam.
    
      Execution of Contract.—Responsibilities of Executors. Judgment on Appeal.
    
    Where an instrument, purporting to be the deed of two parties, is executed by one only, and delivered, whether or not he is bound, depends upon the particular circumstances of the case, which may be shown by paroi; if the other be a mere nominal party, without beneficial interest in the contract, the former is bound. If only delivered in escrow, _ it rests upon him to show it.
    Where an executor describes himself as such in a contract made in behalf of the estate, in which he has no beneficial interest, the presumption is, that he only intended to bind the estate ; he is not personally liable.
    An executor has power to enter into a compromise respecting a claim against the estate he represents, independently of the statute, so that he act in good faith.
    Where the only error in a judgment is an excess in amount, and such excess consists of a distinct item, or can be definitely ascertained by mere computation, the appellate court may affirm, on the appellee electing to release the ascertained excess.
    Appeal from the general term of the Superior Court of the city of New York, in an action for an accounting, tried before a referee.
    The following statement of the facts (among others) found by the referee, is sufficient for an understanding of the questions of law decided by the court:
    The firm of Suydam, Sage & Go. being insolvent, made a general assignment for the benefit of their creditors, to the defendant, Whitney, being then indebted to the Merchants’ Bank of New York upon a note for $23,000, indorsed by Ferdinand Suydam, for which his estate was liable. *The latter, by his will, appointed Charles ’ 1 1 Suydam, and the defendant, Whitney, executors thereof; but Charles Suydam alone qualified as executor. The bank held collateral securities for their claim, the title to which had been derived from the firm of W. G. & G. W. Ewing. On the 15th May 1852, a suit was pending against the Suydams and the- Ewings for the enforcement of this claim, in which a receiver had been appointed ; and about this time, an arrangement was made for a settlement and compromise. On the 18tli May 1852, in pursuance of this agreement of compromise, an instrument in writing, purporting to be made between the Ewings of the first part, and Charles Suydam, executor, and Whitney, assignee, of the second part, was prepared', and signed by the Ewings, and Charles Suydam, executor of Ferdinand Suydam; but not by Whitney. Subsequently, Charles Suydam died, "*and Whitney qualified as executor. This action for an accounting was brought by the plaintiffs, as assignees of the claims of the Ewings, and Whitney alone defended, as executor. Judgment having been entered on the report of the referee, and affirmed at general term, the defendant Whitney took this appeal.
    Larocque, for the appellant.
    
      Butler, for the respondents.
   Selden, J.

The first question which this case presents is, whether the agreement executed on the 18th of May 1852, by Charles Suydam, as executor of Ferdinand Suyd.un,'deceased, of the one part, and by W. G. & G. W. Ewing, of the other part, was obligatory upon the estate of Ferdinand Suydam. It is insisted by the defendant’s counsel: first, that the agreement, having been executed upon one part by Charles Suydam alone, when upon its face it appears that it was also to be executed by Whitney, the assignee, is incomplete, and, therefore, not obligatory upon any one; and secondly, that, if valid as an agreement, it tiinds Charles Suydam personally, and not the estate of which he was executor.

It is very well settled, that where a bondj a deed, or other written instrument is executed by a portion only of those who appear in the body of the instrument as parties, the question whether those who have executed it are bound, depends upon the circumstances under which the instrument was delivered. Those circumstances are open. *° P1’00^ ^ Par°l> and if it "^appears, that at the time of the delivery, by any party whose signature is affixed, anything was said indicating that such party did not intend to be bound, unless other parties also signed, the delivery will be considered as not absolute, but in escrow merely. The fact that the instrument was intended to be delivered in escrow, may also be inferred from the face of the instrument, or the nature of the transaction, in connection with the circumstances surrounding the parties at the time of the execution or delivery. But it rests upon the party who has signed and delivered the instrument, to establish that the delivery was intended to be in escrow.

The effect of these principles, when applied to the present case, is plain. No extrinsic evidence was offered to show that the agreement was not intended to be obligatory, until signed by Whitney. We are left, therefore, upon this question, to the inference to be drawn from the transaction itself, and the circumstances attending it, so far as they appear in the case; and when it is considered, that Whitney was to execute merely as the assignee of the firm of Suydam, Sage & Co., who were utterly insolvent, that inference plainly is, that the execution of the agreement by him, being considered as a matter of no moment, was voluntarily waived.

The second objection is, that the agreement was binding only upon Charles Suydam personally, and not upon the estate of Ferdinand Suydam, of which he was at that time the sole acting executor. When it is sought to charge an estate with a contract made by the executor or administrator, two questions arise, viz.: 1. Was the contract intended and understood to be made by the executor, &c., personally, or in his. representative character only? and 2. If intended to bind the estate, was the contract such as could properly have that effect?

In regard to the first of these questions, I am of opinion, that where the contract itself is ostensibly made in behalf of the estate, and relates exclusively to matters in which the executor or administrator has no personal interest, if the latter, in making the contract, describes himself as executor, &c., the presumption is, that he intended to bind the estate, and not himself. *This Avould be found, in most cases, to be in accordance with the facts, and such, I think, is the legal inference. In the present case, there is no pretence that Charles Suydam had any personal interest in the matter; the agreement Avas made exclusiAmly in behalf of the estate Avhich he represented, and by affixing to his signature the Avords “ executor of F. Suydam,” he indicated that it Avas the contract of the estate, and not his OAvn. To say, that an agreement made in the just and proper execution of the trust reposed in an executor, if signed “ A. B., executor,” is the party’s OA\m personal contract, Avhile if signed “ A. B., as executor ” it Avould bind the estate alone, is to make a distinction Avhich can never be generally understood, or .conformed to in practice.

Upon the question Avhether this contract was one Avhich the executor could properly make with due regard to the interests of the estate, there can be no doubt. By the arrangement, as a Avhole, the estate obtained a certain indemnity against a heavy responsibility, in lieu of an uncertain and litigated claim to the fund in the hands of the receiver. The advantages to the estate were obvious, and the executor Avould have been Avanting in fidelity to his trust, if he had failed to enter into the arrangement.

There is, I think, no necessity for resorting to the equitable doctrine of subrogation, to sustain the plaintiffs' claim. It has been held, that an action at law would lie against an executor, as such, and judgment may be taken cle bonis testatoris, for money paid, at the request of the executor, for the use of the estate; although it is said, that such an action cannot be maintained for money had and received, because it cannot be for the benefit of an estate, that the executor should receive money to the use of other persons. The excess, in this case, over and above the stipulated amount, belonged to the Ewings; so far, therefore, as such excess was applied to the satisfaction of the debt due to the bank, it was strictly money paid for the use of the estate, and where the law would imply a promise, it will certainly sustain one which is express. The objection, therefore, could only apply, at most, to the smab balance of $292.32, paid *over by the bank to the executor, and connected as that is, with the other portipns of the arrangement, considering the unequivocal benefits accruing to the estate from the transaction as a whole, the objection should, I think, be regaded as without force, even as to that.

It was further objected upon the argument, that the executor in this case did not obtain the authority of the surrogate to compromise the claim of the estate, to the proceeds of the Pottawotamie certificates, pursuant to the act of 1847. (Laws of 1847, c. 88.) The object of that statute was, not to confer upon executors and administrators powers which otherwise they would not possess, but to afford tliem additional protection, when acting in good faith in the exercise of their common-law powers. Although they could compromise a claim, or compound a debt, without the aid of the statate, still they might perhaps be held responsible for any serious error in judgment, in so doing. The act in question enables them to obtain the sanction of the judgment of the surrogate, in addition to their own, and this affords them additional protection, if their conduct is fair and honest. The compromise in this case is obviously one which does not need the protection of the statute. It follows from these views, that the judgment of the superior court was right, unless some error was committed in adjusting the amount.

A point is made upon the construction of the agreement. The sum received by Corcoran, the receiver, from the treasury, was $22,162.58, and by the terms of the agreement, the Mechanics’ Bank was to be entitled to retain this sum out of the proceeds of the bonds, together with the “interest which had accrued thereon, in the hands of the receiver,” the excess being to l^e paid to the Ewings. The appellant claims, that this entitled the defendants to interest upon the whole fund in the hands of the receiver, from the time it was received by him, until it was paid over to the bank. The referee held, that it gave them only the interest actually realized upon the fund. There is no doubt, I think, that the construction adopted by the referee was right. There would have been no necessity for *the use of the term accrued,” if it • J ’ was intended to allow interest upon the whole sum, for the whole time. The words “ with interest thereon, while in the hands of the receiver,” would have better expressed such an intent.

The referee undoubtedly erred in carrying out his construction, by not allowing the $411 of interest which had, I think, in the sense of the contract, accrued upon the Missouri state bonds, between the 1st of January and the 18th of May 1852, although not payable until the 1st of July. This error, however, was corrected by the court below at' general term. He also erred in charging the defendants with the five missing coupons, which had been detached from the Nashville city bonds, but that has also been corrected.

The only other error, in stating the account, insisted upon on the part of the appellant is, that he has not been allowed the sum of $554.06 charged by the Mechanics’ Bank, in its account with Suydam, Sage & Co., as the commissions of the receiver. T can see no ground upon which this sum could have been properly allowed to the the defendants. No such item was provided for in the contract between the parties. It appears, that that sum was retained by the bank in its settlement with tbe assignee of Suydam, Sage & Co., but the evidence does not show that it was ever paid over to the receiver. If, however, that fact appeared, still the item could not be allowed, for the reason that the Ewings have never .agreed to any such deduction.

The superior court, at general term, in correcting the errors which they found in the statement of the account by the referee, acted in strict accordance with the uniform practice in such cases. It is well settled, that when the only error in a judgment is an excess in amount, and such excess consists of a distinct item, or can be definitely ascertained by mere computation, the appellate court may make the reversal of the judgment depend upon the election of the party to relinquish the ascertained excess, and in case of his so electing, may affirm the judgment.

The changes which have occurred from time to time in the persons representing the estate of Ferdinand Suydam, do not * affect the case. The contract of Charles Suydam bound the estate; and this obligation continues, whoever may succeed to the duties of the trust. The judgment should be affirmed, with costs of the appeal to this court.

Judgment affirmed. 
      
       See Reynor v. Webb, 36 How. Pr. 353.
     
      
       In Austin v. Munro, 47 N. Y. 366, it is said by Allen, J., that this case was well decided, under its peculiar circumstances, as the subject-matter of the contract was, in fact, a contract and liability of the testator, incurred during his lifetime. And see Ferrin v. Myrick, 53 Barb. 76. But the contract of an executor, made upon a new and independent consideration, though for the benefit of the estate, is a personal one, not binding upon the assets. Cary v. Gregory, 6 J, & Sp. 127; Bloodgood v. Gregory Ibid. 132.
     
      
       Ex parte Scott, 1 Redf. 234; Gillespie v. Brooks, 2 Ibid. 349. And see Wood v. Tunnicliff, 74 N. Y. 45.
     
      
       Seares v. Conover, 3 Keyes 113; Godfrey v. Moser, 66 N. Y. 250.
     