Powell-Sanders Co. v. Carssow

• Decision Date: 10 November 1915
• Citation: 28 Idaho 201,152 P. 1067
• Parties: POWELL-SANDERS CO., a Corporation, Appellant, v. R. BELLE CARSSOW, Administratrix of the Estate of O. C. CARSSOW, Deceased, Respondent
• Court: Idaho Supreme Court

152 P. 1067

28 Idaho 201

POWELL-SANDERS CO., a Corporation, Appellant, v. R. BELLE CARSSOW, Administratrix of the Estate of O. C. CARSSOW, Deceased, Respondent

Supreme Court of Idaho

November 10, 1915

DECEASED PERSON-ESTATE OF-CLAIM AGAINST-FILING OF-ALLOWANCE OF - REJECTION OF - STATUTE OF LIMITATION - ESTOPPEL-PLEADING.

1. Where one holds a claim against the estate of a deceased person and the claim is made out and sent to the attorney of the administratrix, and the administratrix suggests that certain payments have not been credited on such claim, and has her attorney investigate the matter, and asks for a full and complete statement of the deceased's account, and such account is made out and sent to the administratrix or her attorney, and the administratrix then refuses or neglects to indorse an allowance or rejection of such claim for ten days thereafter, and an action is brought thereon within three months after the date of such rejection or failure to allow, such action is not barred by the provisions of sec 5468, Rev. Codes.

[As to statute of limitations and its effect on claims against estates of decedents, see note in 130 Am.St. 324.]

2. Held, that the administratrix did not refuse nor neglect to reject said claim until after she had received the complete statement of the account of the deceased in October, 1913.

3. Under the provisions of sec. 4217, Rev. Codes, the statement of any new matter in the answer in avoidance or constituting a defense or counterclaim must on the trial be deemed controverted by the opposite party; and where a question of the statute of limitations is raised by the answer, the question as to whether the defendant is not estopped from raising that question may be determined without pleading estoppel in the complaint.

4. Held, under the facts of this case, that the administratrix is estopped from defending this action on the ground that it is barred by the provisions of sec. 5468, Rev. Codes, since this action was brought within three months after the date of the rejection of said claim.

5. Held, under the facts and the law that the court erred in granting a nonsuit and entering judgment in favor of the respondent.

APPEAL from the District Court of the Second Judicial District for Latah County. Hon. Edgar C. Steele, Judge.

Action to recover a claim against the estate of a deceased person for merchandise sold and delivered. Judgment for defendant. Reversed.

Reversed and remanded. Costs awarded to the appellant.

C. J Orland, for Appellant.

A claim may still be pending and unrejected before an administrator even though the ten days have passed without indorsement. ( Estate of Coryell, 16 Idaho 201, 101 P. 723; Miller v. Lewiston etc. Bank, 18 Idaho 124, 108 P. 901.)

It is the law that a short statute of limitations relating to claims against an estate "is highly penal, and must be strictly construed." (Elliot v. Cronk's Admrs., 13 Wend. (N. Y.) 35, 39; Kidd v. Chapman, 2 Barb. Ch. (N. Y.) 414, 422; Calanan v. McClure, 47 Barb. (N. Y.) 206; Ulster County Sav. Inst. v. Young, 161 N.Y. 23, 55 N.E. 483.)

The statute is not a bar to the present proceeding. The administratrix made appellant believe that she had neither refused nor neglected to allow its claim, within the meaning of the statute. Since appellant relied and acted upon such belief, until its position has changed, respondent ought now to be forbidden to say the contrary to her former representations. (Barsalou's Case, 4 Abb. Pr. (N. Y.) 135.)

J. H. Forney and Frank L. Moore, for Respondent.

If an executor or administrator of the estate of a deceased person refuse or neglect for ten days to indorse his allowance or rejection upon any claim presented to him, such claim ipso facto becomes a rejected claim. (Rev. Codes, 5466; Rice v. Inskeep, 34 Cal. 224.)

Such claim need not be reported to or be filed in the probate court by the executor or administrator. (Rev. Codes, secs. 5466, 5467, 5593; Chandler v. Probate Court, 26 Idaho 173, 141 P. 635.)

A party to an action cannot avail himself of the benefits of an estoppel, unless he plead it. (Leland v. Isenbeck, 1 Idaho 469; McKeen v. Naughton, 88 Cal. 462, 26 P. 354; De Votie v. McGerr, 15 Colo. 467, 22 Am. St. 426, and footnote, 24 P. 923; Tyler v. Hall, 106 Mo. 313, 27 Am. St. 337, and footnote, 17 S.W. 319; Dwelling-house Ins. Co. v. Johnson, 47 Kan. 1, 5, 27 P. 100; Davis v. Davis, 26 Cal. 23, 39, 85 Am. Dec. 157.)

There being no misrepresentations of a material fact by the respondent, which led the appellant to a course of conduct prejudicial to its interests, there can be no estoppel. ( Bank of Orofino v. Wellman, 26 Idaho 425, 143 P. 1169; Leland v. Isenbeck, supra.)

SULLIVAN, C. J. Budge, J., concurs. Morgan, J., did not sit at the hearing and took no part in the decision of this case.

OPINION

SULLIVAN, C. J.

This is an action upon the claim of plaintiff against the estate of O. C. Carssow, deceased, amounting to $ 6,837.99, with interest. The respondent, as administratrix, is defending upon the ground that the claim is barred by the statute of nonclaim or limitation. The action was tried before the court with a jury and at the close of the evidence the defendant moved for a judgment of nonsuit, the principal ground of which was that the evidence showed that the suit was not brought within three months after the expiration of ten days from the presentment of said claim to the administratrix for allowance. The motion was granted and judgment entered in favor of the defendant. The appeal is from the judgment.

It appears from the record that O. C. Carssow died at Moscow, Idaho, on May 27, 1913; that deceased had been engaged in the retail mercantile business for a number of years prior to his death and had purchased goods from the appellant and at his death was indebted to it; that respondent, his wife, was appointed administratrix of his estate; that before the claim was presented and on July 3, 1913, Mr. Powell, president of the appellant corporation, went from Spokane to Moscow to meet Mrs. Carssow, at her request; that at that time she referred him to Mr. Nesbet as her attorney in the administration proceedings; that before the claim was prepared and presented there was a conversation about it between Mr. Powell and attorney Nesbet, and the latter expressed the opinion that an itemized account or claim covering the last two or three years immediately preceding the death of the deceased would be sufficient; that the claim was made out in that way and sent to Nesbet to be presented to the administratrix, on or about July 10, 1913; that the administratrix raised some question about the application of certain credits on said account, and her attorney made two trips to Spokane to investigate the matter further; that in pursuance of this arrangement between Nesbet and his client, he made two examinations of the account in the office of appellant; that after the first examination he reported to his client that he had gone back to a certain point in the books and the whole account went back much further; that the respondent claimed that the deceased had not dealt with appellant for the length of time indicated, and Nesbet went to Spokane again and examined the account, beginning where he left off before and going back to the very commencement of the account; that at that time Nesbet had conversations with Powell, the president of the appellant company, about the account and the progress of his investigations; that these examinations were both prior to October 6, 1913; that there was an interval of about a month between the two examinations by Nesbet, and that both visits to Spokane were prior to the expiration of three months following the ten-day period mentioned in sec. 5466, Rev. Codes; that after Nesbet's second investigation he said to the assistant treasurer of the plaintiff corporation, referring to the credits that the administratrix had questioned as not being properly applied, that he understood how these credits had been applied and that he would recommend the allowance of the claim.

These occurrences led the plaintiff to believe that the claim was simply being held up for investigation, and upon the favorable report of the attorney the claim would be allowed. After Nesbet's two investigations of the company's books, so far as the account of the deceased was concerned, on October 6th he wrote to the plaintiff suggesting a more complete statement for demonstration to the probate judge, which letter is as follows:

"Oct. 6, 1913.

"Powell-Sanders Co.,

"Spokane, Wn.

"Gentlemen:

"We are writing you in regard to the O. C. Carssow estate, for the purpose of inquiring whether or not you have taken up with the probate court here the matter of proving your claim therein. Probate Judge W. F. Morgareidge is ill today, but will probably be out again in a few days, when the matter could be taken up with him. Your statements thus far, we believe, have failed to show all the credits and purchases since you first opened up dealings with Mr. Carssow.

"Trusting that you will attend to this matter at your earliest convenience and at the earliest convenience of the Court, we are

Yours very truly,

"NISBET & MASON,

"By J. NISBET.

"P. S.--The Court will not approve the claim as it now stands."

In reply to said letter the appellant sent a new statement which covered every transaction had between appellant and the deceased from the time the account commenced. This clearly indicates the negotiations that took place in regard to said claim. The administratrix desired to satisfy herself that all credits had been properly allowed, and on the side of the appellant they wished to show the correctness of its account. Shortly before the time had...