Northam v. Gordon

By the Court, Crockett, J.: This is an action to recover from the executors of the estate of George Gordon, deceased, a sum of money alleged to be due from the estate to Northam and Whitmore, for services rendered by them in successfully resisting the claim of one Limantour to certain lands of Gordon, which were included within the claim. It appears that certain persons, including Gordon, whose lands were affected by the Limantour claim, agreed upon a plan of organization for the purpose of resisting the confirmation of the claim. The plan was reduced to writing, and subscribed by a number of the property owners, of whom Gordon was one. It was agreed to appoint a General Committee, and also an Executive Committee of two, and that the latter Committee should devote its entire attention to the business—should employ counsel, collect evidence, and attend to the defense through all the Courts. It was further agreed that the Executive Committee should “act as contractors with the respective parties [586]in interest to defend to the full extent, if necessary, of the amounts collected and received from them respectively such lands as may be listed with said Executive Committee” against the claim of Limantour, upon condition that “the description of their property shall be presented to the Executive Committee, and a payment shall then be made of one per cent on the assessed value thereof, as per County Assessor’s roll for 1855-56 to the Treasurer, through the Executive Committee, to be entirely applied, on the orders of the Executive Committee, to the cash expenses and disbursements contingent to the business of subscriptions and defense. * * The owners or their duly authorized agents of record, shall then execute a stipulation to pay to the Executive Committee, on said valuation of their said property, one and one half per cent” on the rejection of the claim by the Land Commission; one per cent on the rejection of the claim by the District or Circuit Court, and one and a half per cent on its rejection by the Supreme Court. It was further provided that “should Limantour avoid the issue by releasing the said property, then the whole of the percentages not previously paid shall become due and payable, as if the said claim had been defeated in each instance. * * * It is to be distinctly understood that the claim is litigated solely for the protection of the properties registered in their book, and subscribed upon. The Executive Committee will not exert itself for the benefit of those who do not assist in defraying the cost.” Northam and Whitmore were appointed the Executive Committee, and thereupon Gordon and four other persons subscribed a memorandum at the foot of the instrument in these words: “The undersigned, parties in interest, will subscribe to the foregoing plan, and will so contribute on the property represented by them within said claim.” Opposite Gordon’s signature the property represented by him is stated to be of “about the assessed value,” of forty thousand dollars. The complaint,