Sec. 1715. To What Claims Statute Applies
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This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Sec. 1715. To What Claims Statute Applies
Such statutes do not apply to claims which are contingent and unliquidated at decedent's death,1 as a stockholder's liability on which no assessment has been made,2 or which have not then accrued, as a stock subscription payable on call, before the call has been made.3 But if a suit to enforce a stock liability is pending when the stockholder dies, delay in presenting such claim will bar it by the statute of non-claim.4 By statute in some states, however, contingent claims such as claims for a stock liability5 must be presented. Such statutes do not apply to claims to the title of specific property.6 Such statute does not run against a claim on which a proceeding in appeal operating as a supersedeas was pending.7 Whether omission to present a claim against the estate of the principal debtor discharges a surety is a question on which there is a conflict of authority. In some states it is held that the surety is discharged in such cases ;8 while other states proceed on the theory that the right of the surety against his principal does not come into existence until the surety is obliged to pay what the principal should have paid, and that the surety is therefore not prejudiced by such delay. Accordingly they hold that such failure to present does not discharge the surety.9
10 Henry v. Day, 114 la. 454; 87 N. W. 416.
11 Manatt v. Reynolds, 114 la. 688; 87 N. W. 683.
1 Baker v. Halleek, 128 Mich. 180; sub nomine, Baker v. Stapleton, 87 N. W. 100.
2 Easton v. Somerville, 111 la. 164; 82 N. W. 475; Pacific, etc., Co. v. Fox, 25 Nev. 229; 59 Pac. 4; Vallentine v. Britten, 127 N. C. 57; 37 S. E. 74; Gardner v. Cal-Jaghan, 61 Wis. 91; 20 N. W. 685.
1 Farris v. Stoutz, 78 Ala. 130; Gleason v. White, 34 Cal. 258; Mackin v. Haven, 187 111. 480; 58
N. E. 448; Berryhill v. Peabody, 72 Minn. 232; 75 N. W. 220; South Milwaukee Co. v. Murphy, 112 Wis. 614; 58 L. R. A. 82; 88 N. W. 583.
2 Macdonald's Estate, 29 Wash. 422; 69 Pac. 1111.
3 Fitzgerald's Estate v. Bank, 65 Neb. 97; 90 N. W. 994; South Milwaukee Co. v. Murphy, 112 Wis. 614; 58 L. R. A. 82; 88 N. W. 583.
4 Morse v. Ry., 191 III. 356; 61 N. E. 104; affirming 93 111. App. 31.
5 Barto v. Stewart, 21 Wash. 605; 59 Pac. 480.
6 Haven v. Haven. 181 Mass. 573; 64 N. E. 410; Rice v. Connelly, 71 N. H. 382; 52 Atl. 446.
7 Ryans v. Boogher, 169 Mo. 673. 69 S. W. 1048.
8 Waughop v. Bartlett, 165 III
124; 46 N. E. 197; affirming 61 111. App. 252; Siebert v. Quesnel, 65 Minn. 107; 60 Am. St. Rep. 441; 67 NT. W. 803.
9 Willis v. Chowning. 90 Tex. 617; 59 Am. St. Rep. 842; 40 S. W. 395.
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