Bradner v. Woods

GRAIL, P. J.

—This is an appeal by defendant, as executrix, from a judgment for the sum of $5,640.27 on a rejected claim against the estate.

For some time prior to the death of Charles Lewis Woods, the said Woods and a Mr. Rumbold were partners engaged in the business of buying and selling gasoline, stove oil and motor fuel. At the time of the death of Mr. Woods such partnership was indebted to the plaintiff in the sum of $25,173.31.

For a period of ten days thereafter Mr. Rumbold conducted the business and was personally and solely liable

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therefor. He bought merchandise from the plaintiff in the amount of $9,458.94, which merchandise was resold and the proceeds therefrom paid over to the plaintiff, amounting to $8,211.14, and there was also paid by Mr. Rumbold from other personal cash of his own the sum of $1719.13. Both of the accounts were carried by the plaintiff under the name of Charles L. Woods and Company in one memorandum. At the time of payment, Mr. Rumbold did not direct the application to be made of any of the moneys paid, and the plaintiff did not apply any of said payments to any particular portion of the amounts due him, and no application of the payments had been made by any of the persons interested until they were made by the court. Rumbold became insolvent.

The plaintiff filed a claim against the estate of decedent for the sum of $5,640.27, alleging that that sum was due from the estate and attached to the claim a memorandum of botli accounts as though they were one. The claim was rejected, and thereafter suit was brought thereon, the complaint alleging the indebtedness due at the time of Mr. Woods’ death, and also the subsequent purchases made by Rumbold, alleging that said purchases had been paid for, and alleging also that $19,533.04 had been received to apply on the indebtedness owing at the time of Mr. Woods’ death, and that the unpaid balance was $5,640.27. The defendant did not at any time ask for any bill of particulars or any further detailed information as to the charges or credit shown on the statement attached to the claim, nor with respect to the matters set forth in the claim.

It is the defendant's contention that the estate was not bound by the account of the surviving partner in making purchases after the death of Mr. Woods, and consequently the estate is not responsible for any portion of the merchandise purchased after Mr. Woods’ death, which debits are a part of the memorandum attached to the claim; that the surviving partner was liable for purchases both before and after death; that he made payments both out of partnership and individual funds upon the general account; and that therefore it necessarily follows that no part of the amount of the credits appearing on the accounts subsequent to the death of Mr. Woods should be applied to the purchases made after his death, and that therefore the payments admitted by the verified claim to have been made after the