By the agreement which was made, selecting the three persons named in it to assess and determine the compensation to be paid by the defendant to the testator, it was clearly implied that the dispute existing between the parties on that subject, should be submitted to them for their decision; and even though no power was reserved in it, and created by the statute, for its revocation, it was too late for the defendant to deny its existence, after it had not only asserted the existence of that power, but, in addition to that, had accomplished the object for which that assertion had been *Page 100 made. By the notice, which the defendant gave to the persons who were to assess the compensation, and to the testator, they were prohibited from proceeding with their examination and assessment, and acquiesced in that prohibition. The notice had the exact effect that the defendant designed it should have, which was to prevent the assessment from being made. And after securing that result by means of it, justice requires that it should not now be permitted to avail itself of the objection, that it did not have lawful authority for doing what it actually accomplished. If the act was unlawful, because it was unauthorized, it was none the less the cause of the damages sustained by the testator. It was clearly unwarranted by the legal tenor of the agreement made; and as the defendant has enjoyed its expected advantages, it should bear the burden of the expenses unjustly imposed by means of it upon the testator. Good morals as well as the law, which prohibits every person from taking advantage of his own wrong, concur in maintaining this result.
The recovery was for the expenses necessarily incurred by the testator, in preparing for the hearing of the matter in controversy between himself and the defendant. These expenses constituted a legal demand against the defendant, because they were rendered unavailable to the testator, by the unlawful act performed by it, as well as by means of the breach of the agreement it had entered into; and upon the faith of the performance of which they were legitimately incurred.
The judgment should be affirmed.