National Bank of Commerce v. Ripley
| Decision Date | 12 March 1901 |
| Citation | 61 S.W. 587,161 Mo. 126 |
| Parties | NATIONAL BANK OF COMMERCE, Appellant, v. RIPLEY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.
Reversed and remanded (with directions).
Albert Arnstein for appellant.
(1) Assignment statutes are designed to provide a method whereby a debtor may, under the supervision of a court, apply his assets to the payment of his debts, and to effect a pro rata distribution of such assets among all of his creditors. They are remedial and should be liberally construed to accomplish the salutary purposes of their enactment, namely, a distribution of the assets equally among all the creditors. R. S. 1899, sec. 323; Powers v. Hill, 27 Mo.App 192; Jaffrey v. Mathews, 120, Mo. 317; Turnipseed v. Shaeffer, 76 Ga. 130; Crittendon v. Coleman, 70 Ga. 296; Preston v. Spaulding, 120 Ill. 208; Ellwood v. Marsh, 31 Neb. 134; People v. Lacombe, 99 N.Y. 49; White v Cotzhausen, 129 U.S. 329; South Branch Lumber Co. v. Ott, 142 U.S. 622; Carpenter v. Dick, 41 Ohio St. 295; Kent's Commentaries, p. 465. (2) The amendment of 1879 to the assignment laws of Missouri, allowing a creditor to file and prove his claim after the term designated by the assignee, when he has failed to do so within that time, "on account of sickness, absence from the State, or any other good cause," having been enacted to remedy a defect previously existing in the assignment laws of this State, should be liberally construed "for the suppression of the mischief and the advancement of the remedy." 1 Cooley's Blackstone's Com., p. 86; Sedgwick on Stat. and Const. Law (2 Ed), 308; 23 Am. and Eng. Ency. Law, p. 414; State v. Fenn, 8 Mo.App. 341; Dandy v. Wamble, 110 Mo. 280; Tosbard v. Roger, 114 Mo. 122; Ellwood v. Marsh, 31 Neb. 134; Suppiger v. Gruaz, 36 Ill.App. 60, and 137 Ill. 216; Bank v. O'Donnell, 165 Ill. 39; Owen v. Ramsdell, 33 Ohio St. 443; Scott v. Thomas, 94 Iowa 442; January v. Powell, 29 Mo. 241; Maverick v. Heard, 99 Mo. 581; Bank v. Scudder, 15 Mo.App. 463; In re Uhrig Brewing Co., 11 Mo.App. 387. (3) The reason for the limitation of the time within which claims may be presented for allowance before an assignee for the benefit of creditors, is the same as that for the limitation of the time allowed for presentation of claims before an executor or administrator, and the same liberal construction should control the interpretation of the former as of the latter. Suppiger v. Gruaz, 36 Ill.App. 60; Dugger v. Oglesby, 99 Ill. 45; Morgan v. Gibson, 42 Mo.App. 234; Tenny v. Lasby, 80 Mo. 664; Wilcox v. Jackson, 10 N.W. 665; Petters v. Farrell (Iowa), 13 N.W. 319; Mallison v. Mills (Minn.), 25 N.W. 631. (4) The doctrine of election between inconsistent rights or remedies has no application to the facts in this case, nor should appellant be punished because of its unsuccessful attempt to set off its claim against the deposit which Ripley & Bronson had with it at the date of the assignment. In re Van Norman, 41 Minn. 494.
Clinton Rowell and Joseph H. Zumbalen for respondent.
(1) A creditor who, having been duly notified as required by law, fails to present his claims to the assignee for allowance within the term designated by the assignee, is precluded from any benefit of said estate, unless he can bring himself within the exceptions contained in the statute. R. S. 1899, sec. 342; Nicholls v. Cass, 65 N.H. 212; Smith v. Wheeler, 58 Iowa 659; Carter v. Lee, 83 Iowa 26; Ellison v. Lindley, 33 N.J.Eq. 258; Bank v. Morehead, 38 N.J.Eq. 493; Barton v. Sticher (Kansas), 48 P. 920. (2) "Good cause" for failure to present a claim for allowance at the proper time, under section 342, R. S. 1899, means a cause ejusdem generis with sickness or absence from the State. St. Louis v. Laughlin, 49 Mo. 559; State v. Pemberton, 30 Mo. 376; State v. Bryant, 90 Mo. 534; Edson v. Hayden, 20 Wis. 498; State v. McGarry, 21 Wis. 498; Hatch v. Stamper, 42 Conn. 28; State ex rel. v. May, 106 Mo. 488; State v. Dinnisse, 109 Mo. 38; State v. Schuchmann, 133 Mo. 111; Reg. v. Whitnash, 7 Barn. & C. 596; State v. Lane, 110 Mo. 254. (3) The cause alleged for appellant's failure to present its claim at the proper time is not such as will relieve it from the bar of the statute. Valentine v. Decker, 43 Mo. 583; Kean v. Lowe, 147 Ill. 564; Claflin Co. v. Kelly, 169 Ill. 20; Lovenberg v. Nat. Bank, 67 Tex. 440; Clendenning v. Perrine, 32 Neb. 155; Bank v. Lipp, 46 Neb. 595; Barton v. Sticher (Kansas), 48 P. 920; Dry Goods Co. v. Warden, 151 Mo. 578; Life Ins. Co. v. Elliot, 24 Minn. 134; St. Croix Boom Corp. v. Brown, 47 Minn. 281.
Appeal from the judgment of the circuit court of the city of St. Louis affirming a decision of the assignee refusing to allow a claim of the plaintiff against the assigned estate.
The facts are:
Ripley & Bronson made a general assignment to W. B. Homer, for the benefit of their creditors, July 24, 1893. Mr. Homer gave notice as the statute requires to creditors to present their claims against the estate on September 12, 13 and 14, 1893, of which fact the plaintiff had knowledge. At the date of the assignment Ripley & Bronson had on deposit in plaintiff bank about $ 5,000, and the bank held their notes, not then due, aggregating $ 4,800. The assignee demanded the $ 5,000, but the bank declined to pay it on the ground that it was entitled to set off its notes against the deposit. The assignee sued the bank and the case reached this court, where it was decided that the bank could not set off the unmatured notes of the assignors against the deposit, which at the date of the assignment, was a matured obligation of the bank to the assignors. [Homer v. Bank of Commerce, 140 Mo. 225, 41 S.W. 790.] Thereupon, the bank paid the deposit and interest to the assignee, and then presented the notes it held to the assignee for allowance against the estate. This was long after the time appointed by the assignee for presenting claims had elapsed, but the estate had not been wound up, and the assignee had in his hands assets belonging to it applicable to the payment of its debts. In the petition of the plaintiff the facts as above given are stated and that the reason it had not presented the claims for allowance within the time appointed by the assignee, was that it believed it was entitled to the set off; that the assignee knew all the time of the existence of the notes; that they were given by the assignors for cash loaned them by the bank and constituted an honest debt. The assignee refused to allow the claim, on the ground only that it was not presented for allowance within the time appointed; the plaintiff appealed to the circuit court, which rendered judgment affirming the decision of the assignee, and the plaintiff took this appeal.
The only question presented for our consideration is, was the plaintiff entitled to have its claim audited and allowed, notwithstanding its failure to present the same for allowance within the period appointed by the assignee? The answer to this question must be found in the interpretation to be given to section 342, Revised Statutes, 1899, which directs that the assignee give notice in the manner therein indicated of a time and place when and where claims are to be presented for allowance, and that he attend then and there to audit the same, and that all creditors who after notice fail to present their claims within that time be precluded from any benefit of the estate. The section concludes with this proviso: "that any creditor who shall fail to lay his claim before said assignee during said term, on account of sickness, absence from the State, or any other good cause, may, at any time before the declaration of a final dividend, file and prove up his claim, and same may be allowed, and the remaining dividends paid thereon as in case of other allowed claims."
It is contended on the part of the respondent that the proviso means that the estate will open to let in a creditor whose failure to present his claim within the prescribed time was occasioned by sickness, or absence from the State, or something of that kind, but not otherwise.
It is a rule of construction that a statute should be construed so as to give effect to all its words, if it can be done. Out of that rule grew the further rule on which respondent relies that is, that when particular words of description are used, followed by general words, the latter are to be limited in their meaning so as to embrace only a class of things indicated by the particular words. The learned counsel for respondent, after stating the rule in their brief and citing authorities in support of it, say: "The reason of the rule of construction announced in the foregoing cases is that if the general words were meant to embrace persons or things different in character and kind from those specifically enumerated, there would be no occasion at all for a specific enumeration." The rule, therefore, accomplishes the purpose of giving effect to both the particular and the general words, by treating the particular words as indicating the class, and the general words as extending the provisions of the statute to everything embraced in that class, though not specifically named by the particular words. This subject has several times received the attention of this court. [State v. Pemberton, 30 Mo. 376; St. Louis v. Laughlin, 49 Mo. 559; State v. Bryant, 90 Mo. 534, 2 S.W. 836; State ex rel v. May, 106 Mo. 488, 17 S.W. 660; State v. Dinnisse, 109 Mo. 434, 19 S.W. 92; State v. Lane, 110 Mo. 254, 19 S.W. 533; State v. Schuchmann, 133 Mo. 111, 33 S.W. 35, 34 S.W. 842.] But this is only a rule of construction to aid us in arriving at the real legislative intent. It is not a...
To continue reading
Request your trial