Scott Stamp Etc. Co., Ltd. v. Leake

KERRIGAN, J.

This is an appeal by plaintiff from the judgment and from the order denying its motion for a new trial.

The facts are undisputed and are briefly as follows: On May 10, 1900, at New York, Mrs. Joseph Dunsmuir bought from the plaintiff merchandise at agreed prices amounting to $1,482.33. June 2, 1901, she died without having paid for it. She left a will which was admitted to probate, and letters testamentary were issued thereon on July 15, 1901. Before then, on June 27th, the claim of plaintiff was prepared and sworn to at New York and sent out to San Francisco, where it came into the hands of the executor on July 2, 1901, who, on July 30, 1902, rejected it. This suit was commenced against the executor to establish the claim on October 9, 1902, within three months after its rejection, but more than two years after the original cause of action accrued, and more than one year after the issuance of letters testamentary. The executor afterward resigned, and W. S. Leake was appointed administrator with the will annexed, and was substituted as defendant in his stead.

The goods having been sold and delivered May 10, 1900, an action therefor, to avoid the statute of limitations, would have had to be brought, if Mrs. Dunsmuir had lived, on or before May 10, 1902 (Code Civ. Proc., see. 339). But as she died, and as letters testamentary were issued on her estate July 15, 1901, the time to commence an action on this demand was extended to and including July 15, 1902 (Code Civ. Proc., sec. 353). After this date, and on October 7, 1902, this action was begun, and it is therefore barred unless there are saving features taking it out of the operation of said statute.

The court found that Mrs. Dunsmuir was out of the state of California for a period of six months between the date of the sale of the goods and the date of her death, and this fact is relied upon to extend the time until after this action was commenced, to wit, until November 10, 1902. The court also found that the claim as presented contained no reference

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whatever to Mrs. Dunsmuir’s absence from the state, .and therefore, upon its face, it was barred July 30, 1902, when the executor acted upon it.

Upon these facts, and under section 1499, Code of Civil Procedure, the respondent asserts that there was nothing for the executor to do but reject the claim; that, in other words, in presenting a claim against an estate, facts relied upon to prevent the bar of the statute must be set forth or referred to in the claim itself. To sustain this position he cites a number of cases, in each of which the familiar rule is laid down that when an action is commenced upon a rejected claim it is limited to the claim presented. Or, to state the principle substantially in the language employed by the supreme court, in an action upon a rejected claim against the executors of an estate of a deceased person, the plaintiff can only recover upon the claim presented and rejected, and is not entitled to' recover against the executors for any other cause of action.