Stephens v. Cotterell
Decision Date | 03 January 1882 |
Citation | 99 Pa. 188 |
Parties | Stephens, et al., Administrators, <I>versus</I> Cotterell. |
Court | Pennsylvania Supreme Court |
Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.
ERROR to the Court of Common Pleas of Greene county: October and November Term, 1881, No. 112.
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Purman (Borb with him), for the plaintiffs in error.—The alleged arrangement between the defendant and Israel Stephens was executory only, and, not having been consummated during Israel Stephen's lifetime, expired. The administrators were trustees and this property was trust property. The defendant's alleged contract with the decedent is no answer to the plaintiff's demand that the defendant shall comply with the new contract made by him with them. All evidence relating to the alleged contract with the decedent was, therefore, irrelevant and should have been excluded: McCandless's Estate, 11 P. F. Smith 12.
Buchanan (Wyly and Walton with him), for the defendant in error.
This suit was to recover the sum bid by the defendant on his purchase of personal property at a sale made by the plaintiffs as administrators of Israel Stephens. The defendant held a note against the decedent, and claims to have paid his bid by indorsing the amount thereof on the note.
It is settled law that in an action by an administrator to recover a debt for goods of the intestate, which he as administrator sold to the defendant, the latter cannot set off a debt due from the intestate to him. After the administrator has reduced the goods to his possession and sold them, he may sue for such debt in his own right. It is for the enforcement of a contract made with him. Naming himself as administrator is surplussage. Wolfersberger et al. v. Bucher, 10 S. & R. 10; Beale et al. v. Coon, 2 Watts 183; Steel v. Steel, 2 Jones 64.
To avoid the application of this rule of law and to strengthen his position, the defendant gave evidence that there was an agreement between him and Israel Stephens, by which the property, afterwards bought by him, should be put into the possession of Barzilla Stephens and Azariah Stephens with instructions to sell it, and apply the proceeds thereof on said note; that in pursuance of the agreement the property was put into their possession and so continued; that it remained unsold until after letters of administration on the estate of Israel issued to them; that he purchased at the administrator's sale with the belief that he was buying under the agreement made with Israel; and that, after his purchase, the administrators consented that the sum bid, be indorsed on the note. The plaintiffs strenuously denied having taken any possession of the property, in the life of Israel, or that they consented to an indorsement on the note of the sum bid.
The facts are unquestioned that the estate of Israel Stephens is insolvent, and that the property in question was duly inventoried and appraised as the property of the estate after the plaintiffs were appointed administrators thereof.
In the rejected evidence covered by the third assignment there was an offer to prove by Barzilla Stephens, one of the plaintiffs, substantially that he first took possession of the property on or about the time of the appraisement, and also, where the property was found after letters of administration were granted to the plaintiffs. The defendant objected thereto, first, as it tended to prove a fact prior to the death of Israel, and second, that where they found it, when th...
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