Martin Bros. Co. v. Peterson

• Decision Date: 02 April 1917
• Docket Number: No. 4131.,4131.
• Citation: 38 S.D. 494,162 N.W. 154
• Parties: MARTIN BROS. CO. v. PETERSON et al.
• Court: South Dakota Supreme Court

38 S.D. 494

162 N.W. 154

MARTIN BROS. CO.

v.PETERSON et al.

No. 4131.

Supreme Court of South Dakota.

April 2, 1917.

Appeal from Circuit Court, Brown County; Thomas L. Bouck, Judge.

Action by the Martin Brothers Company against Emil G. Peterson, and Bjorn B. Gislason, as an individual and as executor of the will of J. Peterson, deceased. Judgment for plaintiff, and Gislason, individually, appeals. Affirmed.Roy T. Bull, of Redfield, for appellant.

Frank McNulty and Jos. J. Conry, both of Aberdeen, for respondent.

WHITING, J.

J. Peterson was engaged in the mercantile business at Newark, S. D., at the time of his death in March, 1909. By his will he named the defendant Gislason as his executor. Gislason qualified as executor in June, 1909. At the time of the death of Peterson, Gislason lived and thereafter continued to live in the state of Minnesota. At the time of and immediately preceding the death of said Peterson, his son, the defendant Emil G. Peterson, was in charge of and was conducting the mercantile business for his father. After the death of his father, this mercantile business remained in immediate charge of defendant Peterson, it being conducted in the name of the J. Peterson estate. While the business was being so conducted, and between August 1, 1912, and April 1, 1914, plaintiff sold goods to the said business concern. This action was brought to recover the amount claimed to be due and unpaid for goods so sold. Emil G. Peterson and Gislason (both as an individual and as executor) were made parties defendant. Upon demurrer to the complaint the action was dismissed as against Gislason as executor. The court directed a verdict against Peterson and against Gislason as an individual. From the judgment entered upon such verdict and from an order denying a new trial defendant Gislason appealed.

The assignments present but two questions: (a) The right of respondent to recover anything against appellant. (b) If respondent is entitled to recover, then the amount he is entitled to recover.

[1] Was respondent entitled to a directed verdict? The sole theory upon which respondent claims the right of recovery was because Gislason, without authority so to do, continued such mercantile business in the name of the estate of which he was executor. That he had no authority to continue such business on behalf of the estate is undisputed; but it is his contention that he had nothing whatsoever to do with the continuation of such business-that neither he individually nor the estate of which he was executor was in any way connected with, or liable for the debts of, such business after the death of his testator. No useful purpose could...