Orgill Bros. v. Perry

• Decision Date: 02 June 1930
• Docket Number: 28754
• Citation: 157 Miss. 543,128 So. 755
• Court: Mississippi Supreme Court
• Parties: ORGILL BROS. v. PERRY

128 So. 755

157 Miss. 543

ORGILL BROS. v. PERRY

No. 28754

Supreme Court of Mississippi

June 2, 1930

Division B

1 EVIDENCE.

There is always a prima-facie presumption of law of right doing not wrong doing.

2. EXECUTORS AND ADMINISTRATORS. Where note sued on purported to have been executed by defendant as administratrix, it devolved on plaintiff suing her personally to aver in declaration whether note was executed without authority.

Laws 1912, chapter 143, Laws 1926, chapter 142, Hemingway's Code 1927, sections 1807, 1809, provide that chancery court or chancellor in vacation, may authorize administrator to renew obligations of deceased, etc., and may authorize administrator to continue decedent's business as a going business for certain period, and allow purchase of goods to replenish stock. Negotiable Instruments Law, section 20, Hemingway's Code 1927, section 2774, provides that where instrument contains, or person adds to signature, words indicating that he signs in representative capacity, he is not liable on instrument if he was duly authorized.

3. EXECUTORS AND ADMINISTRATORS.

If execution of note signed by defendant as administratrix was not authorized by law, defendant was personally liable on note (Hemingway's Code 1927, section 2774).

HON. W. A. ALCORN, JR., Judge.

APPEAL from circuit court of Tunica county HON. W. A. ALCORN, JR., Judge.

Action commenced in a county court by Orgill Brothers against Lena R. Perry on a promissory note. A judgment dismissing the case was affirmed by the circuit court, and plaintiff appeals. Affirmed.

Affirmed.

J. T. Lowe and J. D. Magruder, both of Tunica, for appellant.

Any contract made after the testator's death is necessarily a personal contract, as the common law does not recognize the estate of a deceased person as an entity.

1 Williston on Contracts, section 310, p. 586; Foxworth v. White, 72 Ala. 224; Rose's Estate, 80 Cal. 166, 22 P. 86; Miller v. Diddishiem, 95 Ill.App. 321; Howe v. Richardson, 186 Mass. 259, 75 N.E. 543; Clopton v. Gholson, 53 Miss. 486; Woods v. Ridley, 27 Miss. 119; Short v. Porter, 44 Miss. 533; Turner v. Brown, 3 S. & M. 425.

The contracts of an executor or administrator cannot be regarded as in any sense the contract of the decedent.

11 R. C. L., p. 166, section 177; 18 Cyc., p. 881.

If appellee was not liable individually that was an affirmative defense and should be raised by plea, and not by demurrer.

Section 2774, Hemingway's Code of Miss, 1927.

W. L. Bankston, of Tunica, for appellee.

In order to hold the appellee personally liable, the declaration must charge that appellee executed the note sued on herein without proper legal authority of the proper court.

Section 2774, Hemingway's Code 1927.

OPINION

Anderson, J.

Appellant, a mercantile corporation under the laws of the state of Tennessee, brought this action against the appellee in the county court of Tunica county to recover one hundred one dollars and one cent, with interest, the face value of a promissory note payable to the appellant's order, which had theretofore been delivered by the appellee, Lena R. Perry, to the appellant.

Appellee demurred to appellant's declaration on the ground of insufficiency in law, which demurrer was sustained, and appellee declining to plead further the case was dismissed. From that judgment of the county court, the appellant appealed to the circuit court, where the judgment of the county court was affirmed. From the judgment of the circuit court appellant prosecutes this appeal. Appellant's declaration, leaving off the formal parts, is in this language:

"Now comes the plaintiff, a corporation, created and existing under the laws of the state of Tennessee, with its principal place of business in Memphis, Shelby county, state of Tennessee, and complains of the defendant that she render unto it the sum of one hundred and one and ($ 101.01) dollars, with interest thereon from October 13, 1923, to date, at six per cent interest per annum, for that heretofore, to-wit, on October 13, 1923, for value received, the said defendant made, signed and afterwards delivered to plaintiff her certain promissory note, in writing, which date is the date, month and year last aforesaid, whereby and wherewith she undertook, promised and agreed to pay to plaintiff, or order, on or before November 28, 1923, after date of said note, the sum of one hundred one dollars and one cent, with interest from date of said note at the rate of six per cent per annum. Yet said defendant, notwithstanding her undertaking, promises and agreements, aforesaid, to pay the said note, has wholly failed and refused and now fails and refuses, wherefore, plaintiff brings this suit and demands judgment in the sum of one hundred thirty-eight dollars and twelve cents and all cost in this behalf expended. A copy of said note is herewith attached and made a part hereof."

The note sued on was exhibited with the record, and follows:

"Memphis, Tenn., 10/13 1923

"Nov. 28th, 1923 after date, I promise to pay to the order of Orgill Brothers Company, one hundred one 01/100 dollars at the Central State National Bank, Memphis, Tenn., for value received with interest at six per cent per annum from date until paid and ten per cent attorney's fees and other costs of collection if this note be placed in the hands of attorney for collection. It is agreed by the makers and by the endorsers hereof that demand, protest and notice of protest, of this note are expressly waived.

"ESTATE SIMON KAPLAN,

"$ 101.01

By LENA R. PERRY, Admnx."

It will be observed that the action was against appellee personally, and not against her in the capacity as administratrix of the estate of Simon Kaplan, deceased, and that the note sued on was signed, "Estate of Simon Kaplan, By Lena R. Perry, Admnx."

Appellant's position is that the appellee is personally liable on the note because, under the law, she was without authority to...