214 P. 959 | Mont. | 1923
delivered the opinion of the court.
This is an action commenced by the Nevin-Frank Company against Rosa Hubert, as executrix of the last will and testament of John Hubert, deceased, on a promissory note executed by John Hubert to the Centennial Brewing Company in December, 1918, and by that company indorsed before maturity to the plaintiff. Hubert having died, the plaintiff as owner of the note in due time presented to the executrix a creditor’s claim based thereon. The claim set out a copy of the note, with indorsements, and contained this statement:
At the trial it was agreed that the Centennial Brewing Company and the Nevin-Frank Company were Montana corporations during all of the time material to the inquiry. There was no question but that the note was a valid obligation of John Hubert, and it was not contended that any part of it had been paid. Indeed, the only reason why it was not allowed as an acknowledged debt of the estate under the statute, is contained in the statement of counsel for the defense, addressed to the trial court, as follows: “The gist of the defense is insufficiency of verification of the claim, * * * for the reason that it does not appear from the said claim, or from the verification thereof, whether the said Nevin-Frank Company is or was a corporation.”
Counsel for defendant argues: “Mr. Frank fails to state, either by implication or otherwise, that the Nevin-Frank Company is a Montana or other corporation; that he knows anything about the facts; and the verification does not show that it was made on behalf of a corporation by someone who knew what he was verifying.” He cites authorities to the point that if the claim is held by assignment. after the death of
"We do not see merit in any of these contentions. The record shows Lou Frank was president of the NevinFrank Company when he verified the claim. After thus describing himself he conformed strictly to the statutory words when he swore that “the sum of $3,000 is justly due to the said claimant, that no payments have been made thereon which are not credited, and that there are no offsets to the same, to the knowledge of the affiant.” (Sec. 10174, Rev. Codes 1921.) Touching the point that in some jurisdictions in like ease the assignor must verify the claim, it is sufficient to say that here the statute does not require it.
Respecting the phraseology at the beginning of the affidavit it is plain that in the ordinary language of the business world the clear implication was that the Nevin-Frank Company was a corporation. It could not reasonably have been inferred that Nevin-Frank Company was a copartnership' nor that Nevin-Frank Company was a fictitious name used by an individual in business. The word “president” denies any such inference. In view of the fact that the Nevin-Frank Company was a corporation at the time the claim was presented to the executrix, that Frank was then its president, that the note was an honest debt owing by John Hubert at the time of his death, the objection to the form of the claim is technical rather than substantial.
The law’s requirement that all claims arising upon contracts must be presented to the administrator, verified by the claimant, within the period prescribed by the statute (sees. 10173, 10174), is a salutary one, designed for the protection of the estate and of all interested therein. It is designed to compel those having claims against an estate to present them within a limited time in order that the estate may be closed up speedily.. The facts upon which the claim is based must be stated, and the claim verified, substantially as required by law. The purpose is that the administrator may be ap
Inasmuch as the Nevin-Frank Company was a person within the meaning of that term, and itself was verifying the claim through one of its authorized officers, a statement of its corporate capacity was unnecessary, although it is fair to say that if the allegation had. been made probably this litigation would not have arisen. When it is so easy to make these simple averments, it is always better to do so. When a proper officer makes an affidavit for and in the name of the corporation his affidavit is the act of the corporation. (Ullman Co. v. Adler, 59 Mont. 232, 196 Pac. 157; Thedin v. First National Bank, post, 65, 214 Pac. 956; 1 Cal. Jur. 857.) That is the case here.
The court properly admitted the claim in evidence. When the defendant did not offer any testimony the court rightly rendered judgment for plaintiff. From that judgment this appeal was taken. It is without merit. The judgment is affirmed.
Affirmed.
