Curtis v. Poppino

Headnote

Where, on the trial of a cause, it was proved that an acting executor refused to pay a note of $700, given to plaintiff, the creditor, signed by the testator as surety for another person, and replied that he would not pay him until compelled by law to do so, and subsequently executed a writing to plaintiff to the effect, “that the executors request the holder of the note to delay enforcing collection to enable the principal to provide means to pay it, and we certify that the same has been duly presented and is recognized and treated as a demand against said estate,” and it was also proved that sufficient assets came to the hands of the executors. Keild, that the executors were liable for costs, although the executors swore that, after the execution of the writing, they learned and were advised that they had a good defence to the note on the ground of usury. A verdict was rendered for the plaintiff for $491.21, the balance due on the note.

Motion by the plaintiff for costs in -this suit and costs of motion against the defendants, to be levied of the property of Daniel Poppino, deceased.

This was a suit brought on a promissory note, executed to plaintiff by John Borrodaile, Daniel Poppino and Robert Alsop, the two last named alleged to be sureties. The word “ security” was appended to the name of Robert Alsop only : defendants pleaded general issue. The cause was tried at the Wayne circuit on the 29th of April, 1846, and a verdict rendered for plaintiff, against the defendants, of $491.21, the balance due on the note, which was originally $700. B. Whiting, circuit judge, gave a certificate, which was annexed to plaintiff’s moving papers, which read as follows: (Title of the cause.) “ Wayne circuit, April 29, 1846. I hereby certify that it appeared and was proved, on the trial of this cause, on the part of the plaintiff, that this suit was brought upon a promissory note executed by Daniel Poppino, deceased, and others, to the plaintiff, dated July 24,1840, for $700, payable on the first day of October then next, upon which there was due and unpaid, including interest computed to May 4, 1846, the sum of $491.21; that the defendants are the executors of che said Daniel Poppino, deceased; that letters of adminis tration upon the personal estate of the said Daniel Poppino, deceased, were taken out by the said defendants in the year 1841, that the personal property of the deceased which came into the hands of said executors amounted to $1000 or more; that the value of the. real estate of the deceased was some $3000 or $4000; that no inventory of the personal or real estate of the said deceased was ever made or filed; that about the first of November, 1845, the said plaintiff presented his said demand to the said Samuel S. Poppino, one of the said executors, and made demand of payment thereof of him, the said Samuel S. Poppino; that the said Samuel S. Poppino refused to pay the same, and replied to said plaintiff that he would not pay him, the said plaintiff, until compelled by law *to do so.” Plaintiff’s papers contained a copy of a writing signed by Samuel S. Poppino, which read as follows: “ Whereas Daniel Poppino, in his lifetime, became a party to the annexed note, as a surety-maker with John Borrodaile, to whom it belongs to pay said note; and whereas the said Borrodaile is not now in a situation to pay said note, the executors of the estate of the said Daniel Poppino hereby request the holder of said note to delay enforcing collection thereof, to enable the said Borrodaile to provide means to pay same; and they hereby certify that the same has been duly presented, and is recognized and treated as a demand against the said estate. Dated March 6, 1843. (Signed) S. S. Poppino,- executor of Daniel Poppino, dec’d.”

Defendants’ papers stated that Daniel Poppino died on the 4th of July, 1841; that just previous to his death, he informed Samiiel S. Poppino that there were no debts against him. The heirs and legatees were agreed in the amount and disposition of the property left by the deceased, and did not wish to incur the expense of an appraisal, and which they were advised by the surrogate was not necessary under those circumstances. The deceased left but a small amount of personal property; and Samuel S. Poppino, who was the acting executor, never received or realized to exceed about $500

from the assets of the estate. It turned out that there were demands existing against the estate, which the executors paid, amounting to between $300 and $400, besides their claim; and there would not probably be realized over about $150 from the personal assets of the estate. The writing executed by Samuel S. Poppino, referred to in the moving papers, was executed at the request of Borrodaile, who called upon the executors with the plaintiff, and informed them that Borrodaile had made an arrangement with the plaintiff to give him time to pay the note; which the plaintiff was willing to do, if Samuel S. Poppino would sign the writing. Subsequently to the execution of the. writing, Borrodaile informed S. S. Poppino that the note was usurious and void ; and, if prosecuted, he (Borrodaile) should resist the payment of it on that ground. S. S. Poppino stated that no proposition was ever made" to refer the claim; that, if such proposition had been made, he would have been willing to have referred it. The reason why he refused to pay the note was, because he was advised by Borrodaile that it was usurious and void, and, if prosecuted, he (Borrodaile) should take the advantage of it, and advised Poppino to do the same. On stating the case to counsel, he, Poppino, was advised that the note was void, and he therefore felt bound to resist the payment of it. As a further reason for ^refusing to pay it, he had no assets of the estate to pay it with, or any part of it. Borrodaile was unable to pay the note, and nothing could be collected of him. "Ho real estate of Daniel Poppino, deceased, was devised to the executors. '