Peninsular Supply Co. v. Coleman

STANLEY MILLEDGE, Circuit Judge.

The plaintiff (appellant) sued on a promise made by the defendant after her husband’s death. On defendant’s motion for summary judgment she submitted her affidavit that her husband owed some money to the plaintiff at the time of his death in July 1953. The plaintiff failed to file a claim against the husband’s estate. The wife, (defendant) continues to run her late husband’s business and paid off about $750 of her husband’s debt to the plaintiff. On this summary judgment was entered in the defendant’s favor.

This, I think was error. Whether or not the plaintiff could now maintain an action against the husband’s personal representative is immaterial. The plaintiff does not have that kind of action. It is suing Mrs. Coleman on a promise made by Mrs. Coleman. It should not suffer a judgment against it because (if that be the case) the plaintiff could not maintain an action against the decedent’s personal representative. The plaintiff is entitled to an opportunity to prove its allegations against Mrs. Coleman on the promise she is alleged to have made to the plaintiff. While most of the defendant’s answer raises the same irrelevant matters as does the motion for summary judgment, it does contain a general denial so issues of fact have been framed.

The judgment appealed from is reversed.