Res. Holding Co. v. Schoff's Estate

• Decision Date: 04 January 1933
• Citation: 163 A. 768
• Court: Vermont Supreme Court
• Parties: RESOURCE HOLDING CO. v. SCHOFF'S ESTATE.

163 A. 768

RESOURCE HOLDING CO.

v. SCHOFF'S ESTATE.

Supreme Court of Vermont. Chittenden.

Jan. 4, 1933.

Exceptions from Franklin County Court; John S. Buttles, Judge.

Proceeding by the Resource Holding Company, for allowance of a claim against the estate of Charles E. Sehoff.From a judgment allowing claim in full, defendant brings exceptions.

Judgment affirmed; to be certified to the probate court.

Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

Wm. R. McFeeters, of St. Albans, for plaintiff.

S. S. Cushing, of St. Albans, for defendant.

THOMPSON, J.

This is an appeal by the plaintiff from the action of the commissioners of the estate of Charles E. Sehoff in allowing only one-fifth of its claim against the estate.There was a trial in county court on an agreed statement of facts, and a judgment was entered for the plaintiff for the full amount of its claim.The defendant excepted.

The plaintiff seeks to recover upon the following promissory note:

"$185,000.00 New York, October 29, 1930

"Six months after date, for value received, we promise to pay to Chatham Phenix National Bank & Trust Company, Branch, at said Branch, One Hundred and eighty-five thousand dollars, in funds current at the New York Clearing House, with interest from date at 5% per annum.* * *

"[Signed]Chas. E. Sehoff,

"Joe Gill,

"Fred H. Albee, "John Ringling,

"A. C. Cummer."

It appears from the agreed facts that the commissioners allowed the claim for one-fifth of the amount due on the note, and that the defendant then claimed and now claims that the obligation was a joint one, and that the defendant is liable only for one-fifth of the amount due thereon.

The plaintiff's contention is set forth in the agreed facts as follows:

"The plaintiff claims that the obligation is one governed by the law of the state of New York, and that the law of New York, at the time of making said instrument was and at the present time is:

"Section 236 of the Debtor and Creditor Law of the State of New York,Laws of 1928, chapter 833, which went into effect April 6, 1928, reads:

"'On the death of a joint obligor in contract, his estate shall be bound as such jointly and severally with the surviving obligor or obligors.'"

It appears in the agreed facts that the note in suit was "made and delivered in New York on the date named," that is, on October 29, 1930.It is therefore a New York contract, and the rights of the parties are to be governed by the law of that jurisdiction.Harrison v. Edwards, 12 Vt. 648, 36 Am. Dec. 364;Barrett v. Kelley, 66 Vt. 515, 29 A. 809, 44 Am. St. Rep. 862;Smith v. Anderson, 70 Vt. 424. 41 A. 441;Bishop & Co. v. Thompson, 99 Vt. 17, 130 A. 701.

The defendant contends that what is stated in the agreed facts as to the law of New York appears to be a statement of the plaintiff's claim as to that law, and not a fact agreed to by the parties; that, if the liability of the defendant is to be governed by the law of New York, that law should...