Taylor v. Mayo

'Whereas Charles Davis, late one of the trustees of the Cairo city property, has agreed to transfer to the present trustees of said property, S. Staats Taylor and Edwin Parsons, at their request, all of said property remaining in his hands, without requiring previous payment of his demands against said property: Now, in consideration of the premises, and of one dollar to us in hand paid, we, S. Staats Taylor and Edwin Parsons, trustees of the Cairo city property, hereby promise and agree to and with the said Charles Davis, his executors, administrators, or assigns, that we will apply, from time to time, to the payment of all the just claims and demands of said Charles Davis against said Cairo city property, including the sum of $7,382.60, audited October 1, 1860, until the same shall be fully paid, all the moneys which shall come and remain in our hands as trustees as aforesaid, after first paying therefrom all taxes and current expenses of said property and trust actually imposed or incurred. But said claims and demands of said Davis, his executors or administrators, shall not be preferred to like claims of his co-trustee, John H. Wright.

'October 4, 1861.

S. STAATS TAYLOR,

'EDWIN PARSONS,

'Trustees of the Cairo City Property.'

The declaration further alleged that at the date of the execution and delivery of the contract there was due to Davis on just claims and demands against the Cairo city property, which had been audited and allowed, the sum of $7,382.60; that on March 1, 1867, Davis departed this life, leaving a last will and testament, which was afterwards duly proven, whereby he devised and bequeathed all his estate to the plaintiff; that afterwards, on September 30, 1867, the defendants, in consideration of the premises, executed and delivered to the plaintiff another contract, whereby they renewed and confirmed the contract of October 4, 1861, between them and Davis, and agreed to pay the plaintiff, as his administratrix, the amounts due his estate in the same manner and form as in the instrument of October 4, 1861, is particularly set forth, and that although large sums of money had come into the hands of the defendants as such trustees, over and above the amounts necessary to pay all the taxes and current expenses of the property and trust actually imposed or incurred, they had neglected and refused to pay said sum of money or any part of it. The defendants pleaded non-assumpsit. The parties waived a trial by jury, and submitted the issues of fact, as well as of law, to the court, which mode a special finding of facts, upon which it rendered judgment against the defendants in the sum of $12,957.67, that being the principal sum due Davis from the Cairo city property on October 4, 1861, with interest from that date. To reverse that judgment the present writ of error is prosecuted.

Wager Swayne, for plaintiffs in error.

J. Hubley Ashton, for defendant in error.


 * WOODS, J.