Nims v. Rood

11 Vt. 96

• Court: Supreme Court of Vermont
• Decided: January 15, 1839
• Status: Published

Opinion

The opinion of the court was delivered by

Williams, Chancellor.

The orators offer no proof of the agreement stated in their bill; it must, therefore, be taken as admitted in the answer. If the answer is not entitled to credit, as the orators claim in their argument, the bill is without any evidence to support it.

With respect to the note executed by the deceased to Cady, there is no proof in relation to it, and it is wholly denied in the answer that there was any agreement about it. This note must be laid out of the question.

It is admitted there was some agreement in relation to the notes given to Me Candless; and, although they were purchased by the orators after the decease of Rood, and cannot be set off to the full amount against the claims which the deceased held against the present orators, yet, inasmuch as the orators may have relied on the agreement of the administrator, and, on that account, neglected to present them to the commissioners on the estate of the deceased, the orators are entitled to a dividend on those two notes, to be applied to the judgment which the defendants hold against them. The dividend, it appears, was sixty nine cents on the dollar.

With respect to the account against the estate for the attendance of Dr. Nims during the last sickness, it appears the orators have a just claim against the estate for the amount which may be found due. It is proved that Dr. Nims attended him in his last sickness; but, as the account is unliquidated, and is denied in the answer, as well as all agreements in relation to it, the orators cannot have a decree therefor, at this time. A final decree will not now be made in the case, that the orators may have that claim liquidated by a suit at law, inasmuch as it will probably never be recovered unless it is allowed as an offset to the judgment of the defendants against the orators. The orators mSy take a decree for the amount of the dividend on the Me Candless notes, but without cost, as the defendant had a right to sue the orators, as he did, on the note mentioned in the bill, and, moreover, in that suit the present orators claimed to have the whole of the Me Candless notes applied in set off to the defendants notes, which claim was not allowed in their suit, and is unsupported by evidence.

N.B. The defendants consented 'to the allowance of the account for last sickness, and the orator took a decree for that sum as well as for the dividend before mentioned.