delivered the opinions of the court,
Hollenback v. Clapp.
The paper of October 25th 1873, was certainly a very awkward and inartistic contrivance for expressing the actual results of the transaction, which it was intended to represent. Down to the concluding paragraph it purports in terms, to express the fact that the executors, of C. F. Welles had received from C. W. Clapp an assignment of his interest in a contract between C. F. Welles, C. W. Clapp and John C. Welles, and also the sum of $1,500, being the consideration of the assignment, and in addition to this it purports that the executors had received from Clapp the further sum of $2,500 for services which Clapp had rendered to C. F. Welles during his life. Apparently it would seem from this language that Clapp having a claim for $1,500 arising under a contract with the decedent and another, and also a claim for $2,500, for services rendered to the decedent, had actually paid these sums to the executors, although he was manifestly entitled to receive them from those persons. The instrument is so anomalous, that it is unintelligible with*65ont the help of extrinsic evidence. The concluding paragraph affords some, though not complete, explanation of the true meaning of the parties. It does not explain, what was admitted and proved by the plaintiff himself on the trial, that in point of fact the executors received no money whatever, though they acknowledged under seal that they had received the whole sum of §4,000, and it does not express the other equally important and undisputed fact, that the sums mentioned represented merely the valuations agreed upon by way of compromise of the plaintiff's claims. Had these parties all died before this suit was brought, it is difficult to understand how the estate of the defendants could have escaped payment of the whole of this money in the litigation which would almost certainly result from the execution of such an instrument. With the help, however, of the verbal testimony of the parties and the concluding paragraph of the paper, it is not difficult to determine the rights of the litigants. It is unnecessary to consider the force of the authorities cited for the plaintiff to the effect that a promise by an executor to pay money upon a contract made by him, imposes a personal liability, although he annexes his official title to his signature. They establish a perfectly familiar rule, which, if it were applicable to the facts of this case, would suffice to impose a personal obligation upon these executors. Hut the clearly established facts of the case demonstrate, in our judgment, that the rule is not applicable. The final clause of the paper certainly imports that the whole sum of $4,000 was merely to be allowed as a credit to the plaintiff “ in a full and complete settlement of accounts,” thereafter to be made. That settlement was to be made, not necessarily by these two defendants, either as executors or as individuals, but “ between said Clapp and the executors of the estate of C. F. Welles, deceased.” That is, whenever the final settlement should be made between Clapp and the persons who might then be the legal representatives of the estate of Welles, the sum of $4,000, or rather, “the above sums, amounting to $4,000,” shall “be allowed to said Clapp.” We think it very clear that it was the intent of the parties that the two sums should be treated exactly alike in the contemplated future settlement. They were classified together, and boing aggregated, the sum of the two was to he accounted for, and “ allowed to ” Clapp in the settlement. It is explained in the verbal testimony that Clapp had claims against Welles of a considerable amount, and Welles had claims against Clapp, and for some reasons these conflicting claims could not then be all adjusted. These two claims of Clapp’s were in dispute as to their amount, and finally it was agreed that the sum of $1,500 and $2,500 should be the true amounts, which should bo ultimately allowed for them. There *66is no stipulation anywhere in the instrument that the defendants, either as executors oras individuals, should pay in money, either of these sums. An argument has been made to found a liability to pay upon the fact that there was an assignment of Clapp’s interest in the contract of March 1st 1870, to the executors, and that they personally received the benefit of that assignment. The learned Judge of the court below, with manifest reluctance, left that question as a fact to the jury. But in this we think he was clearly in error, partly for the reasons already stated, and still more because there was no evidence that the executors either did or could receive any personal benefit from the assignment. It was made to them in their official capacity solely, and as the land mentioned in the contract had all beep conveyed by Col. Welles in his life-time, and the contract was unrecorded, the plaintiff’s claim was really only a claim for damages for breach of contract. By the adjustment and agreement of the parties these damages were virtually fixed at $1,500, and that sum was “to be allowed to said Clapp” in the full and complete settlement which was to be subsequently made between “said Clapp and the executors of the estate of C. F. Welles, deceased.” In point of fact such a settlement was made nearly seven years later, in March 1880, between Clapp and James ÍI. Webb, who succeeded the defendants in the administration of the estate of Welles, and upon the other accounts between Clapp and Welles, a balance of $942.42 being found due from Clapp, the same was credited upon one of the sums agreed upon by the paper of October 25th 1878. The assignment of Clapp’s interest in the contract of March 1st 1870, was made to the defendants as executors, and simply operated to extinguish the plaintiff’s claim against the estate founded upon that contract, and substituted for it a sum of money which was to be allowed to Clapp in a future and full settlement to be made between him and the executors of Welles. In no possible way could the defendants as individuals take any interest in that contract. The law would forbid it ns a violation of their trust, if any such attempt were ever made. But as the land had already been conveyed by Welles before his death, there was nothing upon which the assignment of Clapp’s interest could operate. The learned court was therefore in error in submitting this question to the jury, and in holding that the defendants might be personally liable on account of the assignment.
Judgment reversed.
*67Clapp v. Hollenback.
For the reasons stated in the opinion jnst filed in the case of Hollenback & Wells v. Clapp, the judgment in this case is affirmed.