Vest v. Kramer

• Decision Date: 14 February 1908
• Citation: 114 N.W. 886
• Parties: VEST ET AL. v. KRAMER.
• Court: Iowa Supreme Court

114 N.W. 886

VEST ET AL.

v.KRAMER.

Supreme Court of Iowa.

Feb. 14, 1908.

Appeal from District Court, Mahaska County; Byron W. Preston, Judge.

Action at law to recover payment for physicians' services. Judgment for plaintiffs, and defendant appeals. Affirmed.L. C. Blanchard, for appellant.

John O. Malcolm, for appellees.

PER CURIAM.

The defendant is a widow, whose husband, Charles H. Kramer, died June 6, 1901. The last sickness of the deceased extended over a period of a year or more, and during this period, the plaintiffs, who are physicians, attended him professionally at the defendant's request. The husband was in comfortable financial circumstances, and the wife then owned no property in her own right. Plaintiffs charged their services to the account of Charles H. Kramer. Soon after the death of the latter, administration was granted upon his estate. The plaintiffs filed no claim against the estate upon said account, and in due course of procedure the administrator made final report, showing distribution of the assets, and was discharged. Thereafter, and within less than five years from the death of Charles H. Kramer, this action was begun. The defendant resists payment, and seeks a reversal of the judgment against her on the theory that her liability, if any, upon said account, was that of surety only, and that plaintiffs having released the husband's estate by failing to present and prove their claims in due season, she is also discharged. The point is also made that, plaintiffs having failed to file their claim against the estate of Charles H. Kramer within the time allowed by law, their right of action thereon as against said estate became barred by the statute of limitations, and, being barred as against the estate of the deceased, it is thereby also barred as against his surviving widow.

In our opinion the liability of the defendant is not that of mere surety for her husband. The statute makes the property of both equally liable for the payment of such family expenses. Code, § 3165. As between them and the creditor both are liable as principals, and the discharge of one does not necessarily work the discharge of the other. While both are liable for the same debt, and payment by one operates as a discharge pro tanto of the other, they are not joint debtors. There is no joint promise or joint contract. The liability of one is contractual, while the liability of the other is purely statutory. In the present case the right to...