The opinion of the court was delivered, July 3d 1867, by
Agnew, J.— The judge in the court below committed a clear error in submitting it to the jury to find that a contract was made by the defendants below to pay Mr. Smith the same fee they had agreed to pay Messrs. Amwake & Alricks, without any *337evidence whatever of the fact. The probabilities of motive and conduct no doubt may become proper subjects of inference, on the part of a jury, from the circumstances surrounding parties at the time when called upon to decide upon their acts. But when, as here, the question is whether an express contract was made to pay a specific sum of money, to begin its proof by a mere supposition of what it was probable the defendants might have thought of, and to deduce from this supposition the fact that they did agree to give this specific fee, is carrying the doctrine of possibilities into a region of subtle conjecture from which nought but practical error can proceed. The probabilities, as the learned judge termed them (unfounded conjectures, rather), were but the merest guesses at what might have happened, but of-which there is no evidence that it did take place. It was the business of the plaintiff to prove his contract, and if he had none express, then the value of the services rendered.
The question as to the liability of the trust estate for that portion of the services which had relation to the proceedings against Bickham individually, does not seem to have been raised in the court below; but as the case goes back for a second trial, it is proper to remark, that the trust fund in the hands of the trustees (as such) is not liable for services rendered in defending one of the trustees against a proceeding to declare him a lunatic. His lunacy was a personal matter, and did not involve the execution of the trust except indirectly, in so far as it might lead to his discharge as a trustee in the event of his being found a lunatic.
Bickham cannot charge the trust with the expense of defending his personal rights, and it would not be proper to produce this result by a verdict.
Judgment reversed, and a venire facias de novo, awarded.