Donnerberg v. Oppenheimer

• Decision Date: 28 September 1896
• Citation: 46 P. 254,15 Wash. 290
• Court: Washington Supreme Court
• Parties: DONNERBERG v. OPPENHEIMER ET AL. [1]

46 P. 254

15 Wash. 290

DONNERBERG v. OPPENHEIMER ET AL. ^[1]

Supreme Court of Washington

September 28, 1896

Appeal from superior court, Spokane county; Norman Buck, Judge.

Action by John Donnerberg against Harriet Oppenheimer and others. There was a judgment for plaintiff, and defendant W. R Newport and others appeal. Affirmed.

Jones, Voorhees & Stephens, for appellants.

Jones Bell & Quinn, for respondent.

SCOTT J.

One Winnie executed a note to Solomon Oppenheimer, and said Oppenheimer and E. J. Brickell guarantied the payment of the note, waiving demand, protest, etc., by a written guaranty upon the back thereof, and Oppenheimer, before its maturity sold the note to one Dekum, and it was thereafter transferred several times, and was finally purchased by the plaintiff who brought this action upon the guaranty against the representatives of said guarantors, they both having died, to collect a balance due upon the note. There is no controversy as to the facts in the case. Oppenheimer's estate had been duly settled through the probate court, and, the claim not having been presented, the court held that said estate was not liable. Brickell, by his will, appointed the appellants Newport, Dyer, and Cheney as trustees of his property, directing them to manage and settle the estate without the intervention of the court. The will was proven, and said trustees were managing and settling the estate without the intervention of the probate court at the time of bringing this action. No notice to present claims against said estate was published. It was agreed, also, that Oppenheimer was principal in said guaranty, and that Brickell was surety.

Appellants' first contention is that plaintiff's cause of action was barred in consequence of a failure to present the note for payment within one year after they qualified as trustees of Brickell's estate. They contend that the statute requires claims to be presented against estates being settled in such a manner, as well as those regularly administered or settled in the probate court. But, conceding this for the purposes of this case only, and not deciding it, it would also have been necessary for the trustees to have published a notice to present claims, and, not having done so, it would not be barred by any failure to present it.

It further appears that the note was presented for payment after the expiration of one year, and that payment was refused, and that the action was not brought until some four months after such presentation, and appellants contend that the plaintiff cannot recover (1) because there was no affidavit of the justness of the claim, etc., and (2) in consequence of the delay in bringing the suit. But appellants stipulated that, prior to the commencement of the action, plaintiff had duly presented said note, and demanded payment, and therefore cannot now raise the objection that there was no affidavit as to the justness of the claim. Nor is the position in regard to the delay in bringing the action well taken, for there was no obligation upon the plaintiff to present the note at all, as said above.

It is next contended that the plaintiff took the note subject to all defenses, and that the guaranty was executed some time after the execution of the note, and was executed by Brickell without any consideration, etc., and that the complaint alleges that the plaintiff obtained the note by assignment and that no indorsement of the note was pleaded or proven. It appears,...