National Bank of Commerce v. Estate of Ripley

• Decision Date: 12 March 1901
• Citation: 161 Mo. 126,61 S.W. 587
• Parties: NATIONAL BANK OF COMMERCE v. ESTATE OF RIPLEY et al.
• Court: Missouri Supreme Court

61 S.W. 587

161 Mo. 126

NATIONAL BANK OF COMMERCE v. ESTATE OF RIPLEY et al.

Supreme Court of Missouri, Division No. 1.

March 12, 1901.

ASSIGNMENT FOR CREDITORS — TIME FOR PRESENTING CLAIMS — STATUTES.

1. Under Rev. St. 1899, § 342, limiting the time for presenting claims against an assigned estate, with a proviso in favor of a creditor who shall fail to present his claim in such time "on account of sickness, absence from the state, or any other good cause," the excuse does not have to be in the nature of sickness or absence from the state.

2. Failure of a bank to present its claim against an assignee within the time limited is for "good cause," within Rev. St. 1899, § 342, in such case extending the time for presentation, where the bank's claim was on notes not yet due, and it was erroneously advised and believed that it had the right to apply to their payment money of the assignor deposited with it.

Appeal from St. Louis circuit court; D. D. Fisher, Judge.

Claim of the National Bank of Commerce against the assigned estate of Ripley & Bronson was disallowed by W. B. Homer, assignee, and from the judgment of the circuit court the bank appeals. Reversed.

Albert Arnstein, for appellant. Clinton Rowell and Jos. H. Zumbalen, for respondent.

VALLIANT, J.

Appeal from the judgment of the circuit court of the city of St. Louis affirming a decision of the assignee refusing to allow a claim of the plaintiff against the assigned estate. The facts are: Ripley & Bronson made a general assignment to W. B. Homer, Esq., for the benefit of their creditors, July 24, 1893. Mr. Homer gave notice as the statute requires to creditors to present their claims against the estate on the 12th, 13th, and 14th of September, 1893, of which fact the plaintiff had knowledge. At the date of the assignment Ripley & Bronson had on deposit in plaintiff's bank about $5,000, and the bank held their notes, not then due, aggregating $4,800. The assignee demanded the $5,000, but the bank declined to pay it, on the ground that it was entitled to set off its notes against the deposit. The assignee sued the bank, and the case reached this court, when it was decided that the bank could not set off the unmatured notes of the assignors against the deposit, which at the date of the assignment was a material obligation of the bank to the assignors. Homer v. Bank, 140 Mo. 225, 41 S. W. 790. Thereupon the bank paid the deposit and interest to the assignee, and then presented the notes it held to the assignee, for allowance against the estate. This was long after the time appointed by the assignee for presenting claims had elapsed, but the estate had not been wound up, and the assignee had in his hands assets belonging to it applicable to the payment of its debts. In the petition of the plaintiff the facts as above given are stated, and that the reason it had not presented the claims for allowance within the time appointed by the assignee was that it believed it was entitled to the set-off; that the assignee knew all the time of the existence of the notes; that they were given by the assignors for cash loaned them by the bank, and constituted an honest debt. The assignee refused to allow the claim, on the ground only that it was not presented for allowance within the time appointed. The plaintiff appealed to the circuit court, which rendered judgment affirming the decision of the assignee, and the plaintiff took this appeal.

The only question presented for our consideration is, was the plaintiff entitled to have its claim audited and allowed, notwithstanding its failure to present the same for allowance within the period appointed by the assignee? The answer to this question must be found in the interpretation to be given to section 342, Rev. St. 1899, which directs that the assignee give notice in the manner therein indicated of a time and place when and where claims are to be presented for allowance, and that he attend then and there to audit the same, and that all creditors who, after notice, fail to present their claims within that time, be precluded from any benefit in the estate. The section concludes with this proviso: "That any creditor who shall fail to lay his claim before said assignee during said term, on account of sickness, absence from the state, or any other good cause, may, at any time before the declaration of a final dividend, file and prove up his claim, and same may be allowed, and the remaining dividends paid thereon as in case of other allowed claims." It is contended on the part of the respondent that the proviso means that the estate will open to let in a creditor whose failure to present his claim within the prescribed time was occasioned by sickness or absence from the state, or something of that kind, but not otherwise. It is a rule of construction that a statute should be construed so as to give effect to all its words, if it can be done. Out of that rule grew the further rule on which respondent relies; that is, that when particular words of description are used followed by general words, the latter are to be limited in their meaning so as to embrace only a class of things indicated by the particular words. The learned counsel for respondent, after stating the rule in their brief, and citing authorities in support of it, say: "The reason of...