9 Ind. App. 324 | Ind. Ct. App. | 1894
The appellee, in the court below, filed a claim, in two paragraphs, against said Margaret Huffman as administratrix of the estate of Daniel Huffman, deceased, pursuant to the provisions of section 2465, R. S. 1894 (2310, R. S. 1881).
The substantial averments in the first paragraph are, that at the sale of the personal property of said decedent, the appellee, upon the faith of the representations and warranty of said administratrix, which he believed to be true, that two Durham cows were with calf, from a thoroughbred bull, purchased and paid for them, and that said cows in fact were not with calf, and that by reason thereof said cows were worth twenty-five dollars less than they would have been had they been with calf, as represented.
The sufficiency of the complaint is attacked for the first time in this court.
The action can not be maintained against the estate. The estate is not liable for the torts of the administratrix. Neither is the estate liable for her representations, warranties, or statements in respect to the condition or quality of said cows. She may be liable personally for any damages appellee may have sustained in reliance on her representations, warranties, or statements, but there can be no recovery against the estate on account thereof.
In Moody v. Shaw, Admr., 85 Ind. 88, the administrator sold real estate which was incumbered by taxes which the administrator agreed to pay, and it was held that the “promise made by the administrator will bind him personally, but not the estate.”
In Kiley v. Kepler, 94 Ind. 308, this language is used: “If he made false representations in the sale, that was his individual tort for which he alone could be held individually liable.” See, also, Rose v. Cash, 58 Ind. 278; Holderbaugh v. Turpin, 75 Ind. 84; Mills, Admr., v. Kuykendall, Admr., 2 Blackf. 47; Cornthwaite v. First Nat’l Bank, 57 Ind. 268.
Whether the claim of appellee sounds in tort or is founded in contract, the result is the same. In any view that may be taken of the case, it is clear, under the authorities cited, that the estate is not liable for any damages sustained by appellee, growing out of the alleged representations, warranties, or statements of said administratrix.
Neither can either paragraph of the complaint be sustained on the theory that the money was paid by appellee to the estate on account of the mutual mistake of the parties. There might be circumstances under which such a claim could be sustained, but it clearly appears, in this case, that the only mistake, if such it can be called, grows out of the fact that neither of the cows was with calf at the time of the sale. It is conceded that appellee obtained the identical cows he purchased, and that he paid the administratrix the amount he agreed to pay
In this case appellee is not entitled to recover from the estate, either under the rules of law or the principles of equity, and our conclusion is that inasmuch as neither paragraph of the complaint states facts sufficient to constitute a cause of action, the judgment of the court below should be, and hereby is, reversed.