Davis v. Lane

The fact that the plaintiff was consulted, and advised to the course adopted, when he had no duty to perform, cannot charge him, when he afterwards became administrator. The evidence of the sons of Foss shows only that he expressed some intention that Prescott should have the note against the defendant, as security; but he does not appear ever to have carried that intention into effect. This constituted no authority to any one to deliver it to him. If there had been such authority, not coupled with an interest in the matter, it could not have been executed after Foss was dead, or insensible on his death bed, of which fact all the parties had notice. Any authority in Mrs. Foss to act as general agent, it has been already settled in this case, was superseded by the situation of Foss, known as it was to her, and to all the other parties to the delivery and exchange of the note. 10 N. H. Rep. 156, S. C.

The plaintiff cannot be barred from maintaining his action, by reason of not having returned to Prescott his note against the intestate. It does not appear that it ever came to his possession. And so of the note of $5, given by Prescott, payable to the intestate.

It has been suggested that Mrs. Foss was appointed admin-istratrix originally, this plaintiff being administrator de bonis non, and that the retaining of the note was a ratification of the contract. The fact that Mrs. Foss was appointed ad-ministratrix is not before us, nor any evidence relating to the *516note for $5, except that such a note was given, and went into her possession. If Mrs. Foss was administratrix, and that note had been paid, by Prescott, to her, during her administration, or to the defendant, that might perhaps amount to a ratification, so as to bar this suit. The mere retaining of it by her would not seem to have that effect. It would not charge her, and more especially the plaintiff, with the amount of the note against the defendant.

Judgment on the verdict.