Clarke v. Philomath College

Decision Date23 February 1921
CourtOregon Supreme Court

Department 2.

Appeal from Circuit Court, Benton County; G. F. Skipworth, Judge.

On petition for rehearing. Former opinion modified, and petition denied.

For former opinion, see 193 P. 470.

E. R Bryson, of Eugene (Smith & Bryson, of Eugene, on the brief), for appellant.

J. K Weatherford, of Albany, and Jay L. Lewis, of Corvallis (Weatherford & Weatherford, of Albany, and Yates & Lewis, of Corvallis, on the brief), for respondents.


Defendants petition for a rehearing and urge further consideration of some of the questions involved in the case. Among other things it is urged that the court erred in rejecting, as a part of the consideration for tract C, the note of J. M. and R. A. Kitson, amounting to $400. It was held in our former opinion that Samuel McLain was not bound to pay this note for the reason that he did not sign it, and that no agreement on his part to pay the same was evidenced in writing.

It is contended by the defendants that there is no authority for giving a third person the right to question the validity of that consideration, that the right to claim the benefit of the statute of frauds is personal to the debtor, and that a creditor cannot make such claim. We are referred to 20 Cyc 306, 307. The defense of the statute of frauds is personal, and cannot be interposed by strangers to the agreement. It can only be relied upon by the parties to the contract or their representatives or privies. Like many other defenses, such as usury and infancy, it might be waived. 29 Am. & Eng. Enc. of Law, 807.

This suit is brought by plaintiff, as administrator with the will annexed of the estate of Samuel McLain. It is not maintained by a stranger to the oral agreement alleged to have been made by Samuel McLain to answer for the debt of the Kitsons. As a general rule, an executor or administrator has practically the same remedies at his disposal, and may make the same defenses, as those available to the decedent in his lifetime. 11 R. C. L. p. 258, § 293. The personal representative of a decedent may set up the defense of the statute of frauds, where it is sought to charge the estate on a contract within the statute. 25 R. C. L. p. 735, § 384. While the plaintiff represents the creditors of the decedent, he also represents the estate of Samuel McLain, deceased, and it was his duty and privilege to see that only valid claims were allowed against such estate.

Complaint is made that defendants were not bound by the former judgment on the note in the action of Ingle v. Parker, as executor of the last will and testament of ...

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