Rittenhouse v. Ammerman

• Court: Missouri Supreme Court
• Writing for the Court: NORTON
• Citation: Rittenhouse v. Ammerman, 64 Mo. 197 (Mo. 1876)
• Decision Date: 31 October 1876
• Parties: A. P. RITTENHOUSE, Adm'r, Respondent, v. P. H. AMMERMAN, Appellant.

64 Mo. 197

A. P. RITTENHOUSE, Adm'r, Respondent,

v.P. H. AMMERMAN, Appellant.

Supreme Court of Missouri.

October Term, 1876.

(Signed)

“P. H. Ammerman,

Executor of last will of James Johnson, deceased;”

Appeal from Maries County Circuit Court.

Lay & Belch, for Appellant.

Signed as it was there could be no personal liability nor judgment de bonis propriis on the note. The intent to bind only the assets of the estate is plain on the face of the instrument.

In the case of Bank of Troy vs. Tapping, 9 Wend. 273; 13 Wend. 557, it was held that the executor is not liable unless it be shown that he had assets.

In 13 Wend. it was held that the giving of the note was prima facie evidence that there were assets. But in this case it was admitted that there were no assets, and that the estate was and is insolvent. If, however, a personal liability was created by the giving of the note, the admission of the insolvency of the estate of appellant's intestate relieves him from such liability, upon the ground that there was no consideration. (See Will. Ex'rs vol. 2, p. 1610; Eick vs. Vanderpool, 8 Johns. 120; Shoonmaker vs. Roosa, 17 Johns. 301; Colb vs. Page, 17 Penn. St. (5 Har.) 469; Beale & Co. vs. Ridgeway, 18 Ala. 117.)

A. P. Rittenhouse, for Respondent, cited: Pars. Notes and Bills, vol. 1, p. 161; same, p. 89; Pars. Contr., vol. 1, p. 250.

NORTON, Judge, delivered the opinion of the court.

The defendant in this case was the executor of one James Johnson, deceased, and as such he procured Johnson and Rittenhouse, who were engaged in publishing a newspaper, to publish notices for the sale of his testator's land, and afterwards executed and delivered three several negotiable notes, payable to said Johnson and Rittenhouse, for such publication. The plaintiff, as administrator of the partnership estate of Johnson and Rittenhouse, instituted suit on said notes against defendant Ammerman, and obtained judgment against him. On the trial it was admitted that the estate of James Johnson was insolvent, and objection was made to the introduction of the notes in evidence, which was overruled, and judgment rendered against defendant de bonis propriis.

The questions presented for determination are: 1st. Is the defendant liable in his individual or representative capacity, and if liable, is there a sufficient consideration to support the promise to pay?

The individual liability of defendant is in a great measure to be determined from the character of the notes themselves. The following is a copy of one of them, the other two being like it in all respects except as to date, amount, and time of payment.

$15.00

VIENNA, MO., June 13th, 1874.

Three months after date I promise to pay to the order of Johnson and Rittenhouse the sum of fifteen dollars for value received, negotiable and payable without defalcation or discount, and with interest from date, at the rate of ten per cent. per annum, and if the interest be not paid annually, to become as principal and bear the same rate of interest.

P. H. AMMERMANN.

Executor of last will of James Johnson, deceased.

It has been repeatedly held that an administrator can maintain an action in his own, individual name, on a note made payable to him “as administrator, etc.,” or “as executor, etc.;” the words “administrator, etc.” being mere words descriptive of his office or title to be rejected as surplusage or as descriptio personæ.

No reason is perceived why this rule of construction should be departed from in the present instance, especially when the notes themselves contain no words indicating an intention or purpose to charge the assets of the intestate with their payment. If such had been the intention of the parties, or the maker of the note, it could easily have been expressed on the face of the paper, and in the absence of such an expression it cannot be inferred.

The notes show that the amounts named therein were to be paid at a future day with a rate of interest agreed upon, with which the defendant had no right in his capacity of executor to charge the estate, by his own personal obligation. Such a writing from these facts alone appearing upon it might well be construed to be the personal undertaking of the executor. (2 Vol...