Katz v. A. J. Ruhlman & Co.

NOURSE, P. J.

Plaintiff, as administrator with the will annexed, sued to recover upon a promissory note delivered by defendant to the decedent. The defendant answered alleging it had an offset against the note in money due from decedent which plaintiff was estopped to deny because of certain acts of the former executor of the estate. The trial court rejected the defense and gave judgment for the full amount of the note with interest.

In its appeal from the judgment defendant attacks the findings of fact as not supported by the evidence, and argues that

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the executor waived the statutory requiremént that, a verified claim he filed, agreed upon a compromise of both claims, and is- estopped from repudiating this agreement.

These facts are undisputed. Josephine Wester and A. J. Ruhlman were coowners of the defendant corporation. In August, 1939, the corporation executed and delivered its promissory note in the sum of $2,500 to Mrs. Wester. In September, 1939, Mrs. Wester died. In the same month A. J. Ruhlman delivered the note to the executor, Monte A. Dernham. Thereafter conversations were had between Ruhlman and the executor through which it was agreed that the balance of $2,037.07 claimed by the corporation to be due from the decedent should be accepted as a - partial offset to the promissory note, that no claim need be filed against the estate, and that the latter would assert as the sum due the estate the balance between the two conflicting claims, which was fixed at $462.93, and interest would be waived. Mr. Dernham was an attorney at law and for several years had been the legal adviser and attorney for Mr. Ruhlman. Acting upon the agreement of these parties the executor filed an inventory in April, 1942, and an inventory and appraisement in January, 1943. The first did not refer to the promissory note, the second stated the sum due on the note to be $262.93. (An obvious clerical error. Should be $462.93.) The corporation, also acting upon the agreement of the parties, and relying upon the legal advice of the executor, failed to file a claim against the estate. After the statutory time for filing had passed, the administrator, who had been substituted for the executor, repudiated the compromise and sued for the full amount of the note.