Univ. of Chi. v. Emmert

• Decision Date: 20 May 1899
• Citation: 79 N.W. 285,108 Iowa 500
• Parties: UNIVERSITY OF CHICAGO v. EMMERT.
• Court: Iowa Supreme Court

108 Iowa 500

79 N.W. 285

UNIVERSITY OF CHICAGO

v.EMMERT.

Supreme Court of Iowa.

May 20, 1899.

Appeal from district court, Linn county; William G. Thompson, Judge.

The plaintiff filed its claim, duly verified, February 11, 1897, for a balance of $800, due on subscription, to which was attached the contract, in words following:

“Chicago, Ill., June 20th, 1889. Whereas, the American Baptist Education Society has undertaken to raise the full sum of one million dollars for the purpose of establishing a college in the city of Chicago, Illinois; and whereas, John D. Rockefeller, of the city of New York, has subscribed six hundred thousand dollars of said sum, upon condition, among others, that the whole amount of said one million dollars is subscribed: Now, therefore, in consideration of the premises, and each and every subscription to said object, we, the undersigned, agree to pay to the American Baptist Education Society, for the purpose aforesaid, and upon the condition that the full sum of one million dollars is subscribed therefor, the sums set opposite our respective names, on the first day of June, 1890: provided that each subscriber may pay five (5) per cent. of his subscription in cash on the first day of June, 1890, and the balance as follows, five (5) per cent. of said subscription every ninety days; or ten (10) per cent. of said subscription in cash June 1, 1890, and the balance as follows, ten (10) per cent. every six months; or twenty (20) per cent. of said subscription in cash June 1, 1890, and the balance as follows, twenty (20) per cent. yearly. Said deferred payments to be evidenced by promissory notes, and to draw interest from June 1st, 1890, at the rate of six per cent. per annum.

+---------------------------------------------------+
                ¦Names.         ¦Addresses.         ¦Am'ts. Remarks.¦
                +---------------+-------------------+---------------¦
                ¦John S. Emmert.¦834 West Monroe St.¦$1,000.”       ¦
                +---------------------------------------------------+
                

--And also an assignment to the plaintiff, signed “American Baptist Education Society, Chicago, August 15th, 1891, by Nelson E. Blake.” The answer was a general denial, with a specific denial of signatures; a denial of plaintiff's capacity to sue, also of the legal right of the American Baptist Education Society to solicit and receive or assign subscriptions; and an averment that it was neither a person, partnership, nor corporation, and that recovery could not be had, because of the omission to execute promissory notes. All the answer, save the general denial and that putting in issue the genuineness of signatures, was stricken on motion. When the evidence had been introduced, on motion, verdict was directed for the plaintiff. From a judgment thereon the administrator appeals. Affirmed.Charles W. Kepler, for appellant.

Preston & Moffit, for appellee.

LADD, J.

In the claim filed, the appellee did not aver in what capacity it acted in presenting its claim against the estate of the deceased. The appellant insists that, because of this omission, no evidence could properly be received. That such an averment is essential in a petition in an ordinary action has been held by this court, and is required by statute (Code, § 3627). Sweet v. Ervin, 54 Iowa, 101, 6 N. W. 156;Byington v. River Co., 11 Iowa, 502. In Bremer Co. v. Curtis, 54 Iowa, 72, 6 N. W. 135, it was said that the claim stands in place of a petition, as the statement of the cause of action. But the manner of pleading in probate is governed by section 3338 of the Code, and the following sections, which require that claims must be entitled in the name of the claimant against the executor or administrator of the estate as such, with the name of the estate, and must be clearly stated and verified, and, if based on a written instrument, a copy of it, with all indorsements, must be set out, and, when not expressly admitted, shall be deemed denied, though specific defenses must be pleaded. These statutes are evidently intended to cover all necessarily to be included in the statement of a claim. No petition is required, and if the sections referred to are complied with substantially, when not...