Crisp v. Dunn
| Decision Date | 06 April 1894 |
| Citation | 29 A. 166,56 N.J.L. 355 |
| Parties | CRISP v. DUNN. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Action by Philip D. Crisp against Jennie E. Dunn, testatrix of Alexander Dunn. Judgment for plaintiff on rule to show cause why verdict should not be set aside. Rule discharged.
In 1891, Crisp, the plaintiff, was a partner in the firm of Fitzgibbon & Crisp. During that year he made and delivered various notes of the firm to Alexander Dunn. The notes were made for Dunn's accommodation, and without consideration, except that Dunn simultaneously made and delivered to Crisp his notes and checks in exchange, for like amounts, and payable to the firm. While these obligations were outstanding, Dunn died, and defendant was appointed his administratrix. The notes which Dunn had received from Crisp had been discounted, and the firm were obliged to and did pay them. Defendant, as administratrix, procured an order to limit creditors, and Fltzgibbon & Crisp made and filed with her, within the time limited, a claim for the amount due on the notes and checks given by Dunn in exchange for the firm's notes. Fitzgibbon thereafter required Crisp to pay the firm the money paid by it to take up the accommodation paper, and the notes and checks of Dunn given in exchange therefor were transferred to Crisp by indorsement. This action is upon those notes and checks. After its commencement, defendant represented to the orphans' court that the estate of Dunn was insolvent. After due proceedings, that court decreed the estate to be insolvent. Defendant, as administratrix, held the individual note of Crisp, given to Dunn for a valuable consideration, and amounting nearly to the sum of the notes and checks sued on. Under those circumstances defendant pleaded the general issue, payment, and set-off, and a special plea that no claim had been presented within the time fixed by the rule to limit creditors. The set-off was upon the last-mentioned note. The jury, under direction, found that Crisp owed defendant $1,232.70; that defendant, as administratrix, was indebted to Crisp in $1,291.34; and the difference of $58.64 was due to Crisp. The postea showing this verdict having been signed, this rule was allowed.
Argued November term, 1893, before the CHIEF JUSTICE, and GARRISON, LIPPINCOTT, and MAGIE, JJ.
John H. Backes, for plaintiff. James S. Aitkin, for defendant.
MAGIE, J. (after stating the facts). It is not contended that the verdict lacked support from the evidence. Crisp's action was not barred by his failure to present to the administratrix a claim upon the notes and checks sued on within the time fixed by the rule to limit creditors. The claim presented by Fitzgibbon & Crisp, then holders of the paper, avoided the bar of the decree, and Crisp, as a transferee, could maintain his action thereon. Ryan v. Flanagan, 38 N. J. Law, 161. The contention is that, if this verdict be allowed to stand, and judgment is entered thereon, the result will be out of accord with the spirit and intent of the provisions of our legislation respecting insolvent estates, and will do injustice to the creditors of the estate represented by defendant. The representation of the insolvency of this estate, and the decree which followed, did not prevent Crisp's prosecution of his action against the administratrix. By the provisions of section 88 of the orphans' court act such an action may be prosecuted to judgment, but no execution can be issued thereon. The judgment only fixes the sum upon which plaintiff's ratable proportion of the assets of the insolvent estate is to be calculated. Revision, p. 772. If Crisp's claims upon the estate are proper to be set off against the claims of the estate upon him, the verdict is obviously right if Crisp's claims upon the estate are not entitled to be set off against the claims of the estate upon him, then the verdict and the judgment to be entered thereon will not accord with our insolvent estate legislation; for by its provisions Crisp would be entitled only to a dividend from the assets upon his claims, but the estate would be entitled to enforce its claims against him to their full amount. And it is plain that no judgment can be entered on this verdict, which would produce such a result. The only judgment which can be...
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