Knowlton v. Thompson
| Decision Date | 26 May 1923 |
| Docket Number | 3918 |
| Citation | 218 P. 117,62 Utah 142 |
| Court | Utah Supreme Court |
| Parties | KNOWLTON et al. v. THOMPSON et al |
On Application for Rehearing August 21, 1923.
Appeal from District Court, Fourth District, Utah County; Elias Hansen, Judge.
Action by Hooper Knowlton and another against Louis Thompson and another. Judgment for plaintiffs, and defendants appeal.
AFFIRMED.
Booth & Brockbank and Martin M. Larsen, all of Provo, for appellant Thompson.
Parker & Robinson, of Provo, for appellant Chipman.
James A. Stump and C. A. Gillette, both of Salt Lake City, for respondents.
In this action plaintiffs seek judgment for a commission alleged to be due from defendants on a real estate loan. The written application upon which plaintiffs base this action, so far as material here, is as follows:
Subsequent to March 3, 1919, and on May 15th of that year, the signers of that paper obtained a loan from Zion's Savings Bank & Trust Company of Salt Lake City for $ 75,000 and secured payment of the same by a mortgage on the real property referred to in the written application of March 3d. Plaintiff Young before the institution of the action, by assignment, became the owner of a one-third interest in the cause of action. After the institution of the original action J. E. Jensen, died, and thereafter James Chipman, Jr., was appointed administrator of his estate. The defendants filed separate answers, were represented in the district court and in this court by separate counsel, and have filed separate briefs.
There is substantial evidence in the record to support the verdict of the jury awarding judgment to the plaintiffs. There is no claim to the contrary. Counsel for the administrator insist that the court erred in permitting any evidence to be introduced in support of plaintiffs' claim against the estate and in refusing to grant a nonsuit, for the reason that no claim was presented to the administrator which complied with the requirements of the statute, and also that the plaintiffs failed to have the administrator substituted as a party defendant within three months after the rejection of the claim. On the part of both defendants error is assigned respecting the admission of certain testimony over their objections. We shall consider these questions in the order named.
It is provided by Comp. Laws Utah 1917, § 7657, that, if an action is pending at the time of the death of the defendant, the plaintiff must present his claim to the executor or administrator authenticated as in other cases, and that no recovery shall be had in the action unless proof is offered of such presentation. Section 7649, relating to claims against estates and their verification, among other things provides:
"If the claim be founded on a bond, bill, note, or any other instrument a copy of such instrument must accompany the claim, and the original instrument must be exhibited, if demanded, unless it be lost or destroyed. * * *"
The claim presented to the administrator did not contain a copy of the written application of March 3, 1919. The claim was verified, and no criticism is made respecting the form or substance of the verification. It is insisted by counsel for the administrator that any claim plaintiffs may have had against the estate was founded upon the written application of March 3, 1919, and that it was therefore the duty of the claimants, plaintiffs here, to accompany the claim with a copy of that paper. Numerous authorities are cited holding that any one presenting a claim to an administrator or executor must strictly comply with the provisions of the statute, and that, upon failure so to do, the administrator or executor should not, and cannot, allow the claim. It is therefore argued that, when any one has a claim against an estate, and fails in presenting that claim to comply with the requirements of the statute, the administrator or executor is not only justified in disallowing the claim, but that it is the legal duty of such administrator or executor to disallow it; further, that such claimant cannot have his proof to establish such claim against the estate heard at a later date in a court of law. The difficulty with counsel's argument so far as this case is concerned, is that the plaintiffs' cause of action is not founded upon the written application a copy of which it is insisted should have been attached to the claim. It is apprehended that what the Legislature intended by that provision is that a copy of any instrument which in and of itself constitutes a claim or a promise to pay should be attached to the claim, so that the administrator or his legal adviser can determine whether the contract constitutes an obligation due from the estate. The claim of the plaintiffs in this action does not appear from the application of March 3, 1919. That paper, standing alone would not indicate that the plaintiffs are entitled to recover anything or have any claim against the estate. At most it is but a part of the evidence by which plaintiffs can prove that the estate is indebted to them, and that they have a legal claim against it.
It appears that the claim was rejected by the administrator on April 8, 1921, and was returned to plaintiffs' attorneys with a letter advising that the claim had been rejected. Nothing further was done concerning the matter until the 28th day of March, 1922. On that date the case was called for trial in the district court. Apparently without objection, the complaint was amended so as to make James Chipman, Jr., administrator, a party defendant. It is insisted by counsel that plaintiffs having neglected to have the administrator substituted as a party defendant within three months after the rejection of the claim, are barred from maintaining an action against the estate. That contention is based upon Comp. Laws Utah 1917, § 7653, in which it is provided that, whenever a claim is rejected by an executor or administrator or a court, the holder must bring an action in the proper court against the executor or administrator within three months from the date of the rejection, if the claim be then due; "otherwise the claim shall be forever barred." It is provided in section 6513 that an action or proceeding does not abate by the death or disability of a party to that action if the cause or action or proceeding survive or continue. That section also provides that, upon the death or disability of a party, the court may, on motion, allow the action or proceeding to be continued by or against his representative or successor in interest. The particular objection urged was before the Supreme Court of California in Gregory v. Clabrough's Ex'rs, 129 Cal. 475, 62 P. 72. In the course of the opinion the court said:
The California statute is identical with our section 7653.
The trial court did not err in overruling the objection to the introduction of the claim in evidence nor in holding that plaintiffs were not limited to 90 days in asking for a substitution of the administrator in an action pending at the date of the death of the decedent. It is admitted that defendant Thompson and deceased, Jensen obtained a loan from Zion's Savings Bank & Trust Company subsequent to March 3, 1919, in the sum of $ 75,000. The issue of fact is whether Knowlton, either by himself or through his agents or associates, was the instrumentality by or through whom the loan was obtained. It appears that the bank has a committee designated in the record as a loan committee, and also as an executive committee. It is the duty of this committee to pass upon applications for loans. The committee at the date in question consisted of Messrs. Bennett, Winters and Giauque. The cashier of the bank was a Mr. Beebe. It was customary for this committee to meet daily, and the cashier would present to it such applications for loans as he desired to have the committee consider. An application for the loan in question was presented in some form to the officers of the bank. It was not signed by any one. The matter was before the committee on different dates. It is the contention of the defense that the decedent, Jensen, was personally acquainted with the officials of the bank, had done business with that institution for years, and that he and his codefendant obtained the loan through that relationship, and not through any effort on the part of plaintiffs. It is the claim of plaintiff Knowlton that he was assisted in negotiating this loan by a Mr. Van Dyke, who, it appears, was acquainted with at least some of the officials of the bank, and had frequently done business with that institution prior to the date of negotiating this loan. Mr. Bennett was a witness for plaintiffs. During his direct examination he was permitted to state that, at a meeting of the loan committee, when neither plaintiffs nor defendants were present, he made inquiry "where the application for the loan came from," and further that "I was told...
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