Schweitzer v. Smith , 74 Ind. App. 682 ( 1921 )

Nichols, J.

Action by appellant commenced by filing his claim in usual form against the estate of appellee’s decedent for money loaned and goods and merchandise furnished such decedent, at her special instance and request, covering a period from August 8, 1907, to August 29, 1916, aggregating $599.80. The money and goods were furnished at divers times during said period, and in divers amounts. The claim was verified, it appearing in the verification that the articles and cash “were furnished to decedent at her special instance and request and under promise from her to affiant, that the same would be fully paid out of her estate after her death, and were furnished by this affiant under said promise and agreement and not otherwise.”

1. 2-3. A demurrer to the claim was sustained, and, appellant failing to plead further, judgment was rendered in fávoí * of appellee for costs. The ruling of the court in sustaining the demurrer is the only error presented. The claim apprised appellee of the nature of the action, the amount demanded, and shows enough to bar another action. The fact that the averment of the promise to pay after death appears in the verification, instead of in the body of the claim can make no difference; it is sufficient. Stewart, Admr., v. Small (1894), 11 Ind. App. 100, 38 N. E. 826. Appellee contends that the claim shows on its face that it is barred by the statute of limitations, appellant, after the ruling on demurrer, having dismissed all items within six years of the date of the death of appellee’s decedent. But the promise to pay was after death, and such a promise is valid. Wolfe, Admr., v. Wilsey (1891), 2 Ind. App. 549, 28 N. E. 1004; Woods, Exr., v. Matlock (1898), 19 Ind. App. 364, 48 N. E. 384. And the statute did not commence to run until the debt was due, which was after her death.

4. Appellee further contends that the action involves a sale or transfer of personal property exceeding the value of $50, and that it is therefore within the statute of frauds. But the claim shows that the goods and cash had been furnished, which, of course, means that they had been accepted and received. Delivery takes the case out of the statute. §7469 Burns 1914, §4910 R. S. 1881; Barkalow v. Pfeiffer (1871), 38 Ind. 214. The claim stated a cause of action. Judgment reversed, with instructions to the trial court to overrule the demurrer to the claim, and for further proceedings.