In re Andersen's Estate
| Decision Date | 17 May 1921 |
| Citation | 101 Or. 94,198 P. 236 |
| Parties | IN RE ANDERSEN'S ESTATE. [a1] v. ANDERSON. DE GOLIA |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.
In the matter of the estate of Frederick Andersen, deceased. Claim by G. E. De Golia, opposed by Charles Anderson administrator. The claim was disallowed in the county court and claimant appealed, and from a judgment allowing the same in the circuit court the administrator appeals. Affirmed.
See also, 188 P. 164.
Under date of April 8, 1918, G. E. De Golia, as purchaser, signed a writing addressed to the Elgin Motors Company, Incorporated. The writing was in substance an order for the delivery of an Elgin automobile for the price of $1,250. The Elgin Motors Company, Incorporated, acting through C. S. Yates as manager and salesman indorsed upon the paper a written acceptance of the order. The writing may therefore be called a contract whereby the Elgin Motors Company, Incorporated, agreed to deliver and De Golia agreed to buy an Elgin automobile for the price of $1,250. When De Golia signed the order he paid to C. S. Yates the sum of $20 on the purchase price; and Yates led De Golia to believe that the ordered automobile would be delivered to De Golia at the end of about four weeks. On May 4, 1918, Yates told De Golia that he had "a whole carload of cars," but that he did not have enough money to pay the freight bill. Yates requested De Golia to advance the additional sum of $380 on the price of the automobile ordered by De Golia, and Yates stated that if De Golia would advance such amount "you can have your car to-morrow morning." De Golia informed his wife of the request, and after consultation they concluded to comply with Yates' request. De Golia delivered to Yates a check for $36, and at the same time signed a note for $850, payable to the order of "Elgin Motors Company Incorporated," and directed Yates to go "to the house" and see Mrs. De Golia, who would pay him "the balance of the money, amounting to $400." When Yates saw Mrs. De Golia she also signed the note, and at the same time paid Yates $344 in cash, making a total of $400 paid to Yates, which amount, together with the note, made up the full purchase price of the automobile. Yates failed to deliver the automobile as he had promised. He made excuse after excuse for his failure to deliver the automobile. Notwithstanding repeated promises of delivery, Yates never delivered any automobile, and, furthermore, he not only failed to deliver any automobile, but he also refused to return the sum of $400 which had been paid to him.
Frederick Andersen was a resident of Astoria from some time prior to April 8, 1918, until October 26, 1918, when he died. After his death an administrator of his estate was appointed. Claiming that Frederick Andersen and C. S. Yates had been partners doing business under the name of the Elgin Motors Company, Incorporated, and engaged in buying and selling Elgin automobiles from April 7, 1918, to October 26, 1918 inclusive, G. E. De Golia filed with the administrator of the estate of Frederick Andersen, deceased, a claim for $400. The administrator rejected the claim on December 27, 1918, and thereupon De Golia presented his claim to the county court for allowance. The county judge disallowed the claim, and De Golia immediately appealed to the circuit court. A trial by jury resulted in a verdict and judgment in favor of De Golia. The administrator appealed.
Norblad & Hesse, of Astoria, for appellant.
G. C. Fulton and A. C. Fulton, both of Astoria, for respondent.
HARRIS, J. (after stating the facts as above).
The order of the county judge disallowing the claim is dated April 25, 1919. The notice of appeal served and filed by De Golia is dated May 13, 1919. On May 15, 1919, De Golia filed and served an undertaking on appeal, obligating him and his two sureties "to pay all damages and costs which may be adjudged to him on the appeal, not exceeding the sum of $100, to which amount we acknowledge ourselves jointly and severally bound."
On September 16, 1919, the administrator filed a motion "for an order dismissing said pretended appeal, no valid appeal having ever been effected from the order of the county court." This motion was heard in the forenoon of October 24, 1919, and "at the conclusion of the arguments of counsel the court took the same under advisement." In the afternoon of October 24, 1919, after the motion had been argued to the court and by the court taken under advisement, De Golia served and filed a motion, asking for leave to file an amended undertaking on appeal, and with this motion De Golia presented the proposed amended undertaking on appeal, under the terms of which De Golia and two sureties "undertake and promise on the part of appellant that the said appellant will pay all damages and costs which may be adjudged to him on the appeal." On October 25, 1919, the court, after hearing the two motions, allowed the motion for leave to file the amended undertaking on appeal, and disallowed the motion to dismiss the appeal. The undertaking on appeal originally filed by the claimant was limited to a definite and specified sum, and consequently did not comply with section 551, Or. L., which requires an undertaking "to the effect that the appellant will pay all damages, costs and disbursements which may be awarded against him on the appeal"; and since the undertaking did not comply with the statute it was insufficient. State ex rel. v. McKinmore, 8 Or. 208; Sanborn v. Fitzpatrick, 51 Or. 457, 91 P. 540; Sutton v. Sutton, 78 Or. 9, 150 P. 1025, 152 P. 271; Rugh v. Soleim, 92 Or. 329, 333, 180 P. 930.
The administrator contends that the claimant's cross-motion for permission to file an amended undertaking was made too late, for the reason that it was not made until after the motion to dismiss was brought on for argument; and in support of his contention the administrator cites the following early precedents: Cross v. Chichester, 4 Or. 114; Alberson v. Mahaffey, 6 Or. 412; State ex rel. v. McKinmore, 8 Or. 208. The narrow and extremely technical rule announced in the three last-mentioned cases was, especially when viewed in the light of section 550, subd. 4, Or. L., without any good or substantial reason to support it; and hence Cross v. Chichester, 4 Or. 114, and the two cases which followed it were subsequently overruled, and the doctrine of those cases no longer prevails. Elwert v. Norton, 34 Or. 567, 571, 51 P. 1097, 59 P. 1118; Fleischner v. Bank of McMinnville, 36 Or. 553, 556, 54 P. 884, 60 P. 603, 61 P. 345; Ferrari v. Beaver Hill Coal Co., 54 Or. 210, 213, 94 P. 181, 95 P. 498, 102 P. 175, 1016. See, also, Mendenhall v. Elwert, 36 Or. 375, 380, 52 P. 22, ley v. Stewart,
It is manifest that the appeal was taken in good faith, and that the insufficiency of the first undertaking on appeal was the result of a mistake; and therefore the circuit court properly denied the motion to dismiss the appeal, and rightly permitted the filing of the amended undertaking. Fildew v. Milner, 57 Or. 16, 109 P. 1092; Sutton v. Sutton, 78 Or. 9, 11, 150 P. 1025, 152 P. 271; Steed v. Cavanaugh, 80 Or. 62, 151 P. 968; Hodgson v. Martin, 90 Or. 105, 107, 166 P. 929, 175 P. 671.
The claim which was presented to the county judge for allowance was drawn upon the theory that Yates and Andersen were partners, and that therefore Andersen was liable for moneys paid to his partner, Yates. The verified claim presented by De Golia affirmatively states that Yates and Andersen were partners engaged in buying and selling automobiles, and had been doing business under the assumed business name of Elgin Motor Car Company, Incorporated; that on April 8, 1918, G. E. De Golia entered into a contract in writing with Yates and Andersen, partners doing business under the name of Elgin Motors Company, Incorporated, "which said contract was and is in words and figures following" (and then follows a full copy of the writing dated April 8, 1918); that De Golia paid $400 to Yates and Andersen; that Yates and Andersen refused to deliver any automobile, and also refused to refund the sum of $400; and that therefore De Golia is entitled to recover from the estate of Andersen the sum of $400. Although the verified claim takes the place of a complaint, the facts constituting the claim need not be stated with the degree of particularity required in a complaint filed in an action at law. The facts constituting a claim against an estate may be averred in general terms; and, if the facts show a subsisting liability in favor of the claimant, the claim is sufficiently stated. Wilkes v. Cornelius, 21 Or. 348, 350, 28 P. 135; Goltra v. Penland, 42 Or. 18, 69 P. 925; 11 R. C. L. 194.
Notwithstanding the liberal rule which is followed in determining the sufficiency of a claim presented to an administrator or executor, the trial, whether it be in the county court or on appeal in the circuit court, must be had upon the claim as presented and disallowed by the administrator or executor. The claimant must recover, if he recovers at all, upon the claim as presented. Wilkes v. Cornelius, 21 Or. 348, 352, 28 P. 135.
When at the trial in the circuit court the claimant rested, the administrator also rested without offering any evidence; and consequently, when the case was submitted to the jury, there was no evidence to be considered except the evidence offered by the claimant. After both the claimant and the administrator had rested, the latter moved that the jury be directed to return a verdict for the administrator, for the reason that the claimant had failed to prove that a partnership existed between Yates and Andersen. The court denied the motion for a directed verdict, and...
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