Bernstein v. Rubin

DRAPER, J.

Defendant appeals from judgment for plaintiff in an action tried without jury. Plaintiff appeals from the portion of the judgment denying him interest. The action arises out of a joint venture agreement by which the parties agreed to share the costs of goods purchased by plaintiff, and to share the profits of their resale. Not the least confusing feature of the case is the fact that the goods, although purchased from “Northwest Tractor and Machinery Corp.,” consisted of face creams and lotions.

The original complaint, for money had and received, was filed June 13, 1950. It named Alexander Rubin as defendant. During his lifetime, this defendant moved to dissolve an attachment and apparently answered and cross-complained. Alexander Rubin died December 28, 1951. On January 4, 1952, Abraham Rubin petitioned for letters of administration with the will annexed, and was appointed such January 18. Notice to creditors was first published January 21, 1952. One of the attorneys for Alexander Rubin in this action was attorney for the administrator, and the notice to creditors designated that attorney’s office as the place for filing of claims against the estate. This attorney had a copy of the original verified complaint and of the bill of particulars in this case. Plaintiff, on May 21, 1952, served and filed request for special notice in the estate proceeding. By written stipulation dated May 20, 1952, it was agreed by counsel for both parties that Abraham Rubin, as administrator, should be substituted for Alexander Rubin, deceased, as “party defendant and cross-complainant” in the present action. Pursuant to this stipulation, order effecting this substitution was signed and filed June 9, 1952. No formal claim was filed in the probate proceeding before expiration of the time to file claims in July, 1952.

October 26, 1953, plaintiff filed in the probate proceeding his “Notice of Motion for Leave to Pile Amended Creditor’s Claim.” Accompanying the motion was a verified “amended

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claim” stating the substance of the complaint in this action, and the affidavit of one of plaintiff’s attorneys. Both claim and affidavit alleged that copies of both the verified complaint and bill of particulars herein were in the possession of both the administrator and his attorney from the time of the administrator’s appointment. The claim alleged that negotiations for settlement were carried on by counsel for plaintiff and for the administrator, and that the claim was rejected before May 20, 1952. After hearing, plaintiff’s^ motion was granted by the probate court, and the amended claim was filed.