Farwell v. Richardson
| Decision Date | 26 November 1900 |
| Citation | 84 N.W. 558,10 N.D. 34 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Action by George N. Farwell against S.D. Richardson, administrator of W. L. Richardson. Judgment for defendant, and plaintiff appeals.
Affirmed.
John E Greene, for appellant.
Smith Stimmel, for respondent.
The complaint in this action alleges, in substance, that said W L. Richardson, deceased, in his lifetime executed and delivered two certain promissory notes, one for $ 900 and the other for $ 50, and that said notes are held and owned by the plaintiff. The complaint further alleges that said W. L Richardson has departed this life, and that said S.D Richardson is the duly-qualified and acting administrator of the estate of the deceased. It is further averred in the complaint that the plaintiff on or about the 23d day of April, 1898, filed with the said administrator, the defendant, a duly-verified statement of the plaintiff's claim against the estate of the deceased, based upon said note for $ 900. The complaint further avers "that thereafter, and on or about the 8th day of July, 1898, an agreement was entered into between the plaintiff and said defendant and the heirs at law of the said W. L. Richardson, deceased, whereby it was agreed that the plaintiff would accept in full payment of said claim upon the above described promissory note, as against the estate of said deceased, the sum of two hundred and sixty-eight and 95-100 dollars, with interest thereon at the rate of eight per cent. per annum from October 15, 1897; that thereafter, and on or about the 14th day of November, 1898, the said claim was by the said defendant duly allowed and approved for the sum of two hundred and ninety-two and 20-100 dollars, which approval was indorsed upon said proof of claim." The language of said indorsement, so far as the same is material, is that the claim "is allowed and approved for the sum of two hundred and ninety-two and 20-100 dollars this 14th day of November, 1898." Said indorsement was signed by the administrator as such. It is also alleged that said claim was presented for allowance to the County Court on December 9, 1898, and was then rejected by said court, and that the defendant has ever since refused to pay the claim. The allegations of the complaint setting out the plaintiff's claim based upon the note for $ 50 are in all respects similar to those above recited, except that said claim was presented for allowance on April 25, 1898, and except that as to the $ 50-note there is no averment of an agreement on the part of the defendant to allow the claim, or any part thereof. Said claim was, however, attempted to be allowed in full by the administrator by an indorsement to that effect upon the claim made by the administrator on November 14, 1898.
To this complaint a demurrer was interposed upon the ground that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was sustained, and the court below entered a judgment of dismissal, with costs to defendant. The plaintiff has appealed to this court from such judgment, and the sole question presented for...
To continue reading
Request your trial