Megrath v. Gilmore

Citations

• 15 Wash. 558
• 46 P. 1032
• 1896 Wash. LEXIS 248

Syllabus

<p>DECEASED JOINT DEBTOR — SURVIVAL OF LIABILITY — DEATH PENDING APPEAL — SUBSTITUTION OF EXECUTORS — FAILURE TO PRESENT CLAIM — VARIANCE.</p> <p>Upon the death of a joint debtor, the right of action on the liability survives against his representatives.</p> <p>Where, pending an appeal from a judgment, the appellant dies and his executors are substituted by stipulation, they cannot, on a retrial of the cause after reversal, demand a non-suit on the ground that the claim in action had never been presented to them as executors.</p> <p>Failure to present a claim to the executors of one joint debtor will not release the other joint debtor, in cases where the law excuses, or does not require, presentment to the executors.</p> <p>Where executors have been substituted as parties defendant in a cause by stipulation, it is unnecessary to file an amended complaint showing the death of the defendant and the appointment and substitution of his executors.</p> <p>A defendant cannot urge a variance between the contract pleaded by plaintiff and the one offered in evidence, when the judgment is based on the contract pleaded by defendant in his answer.</p>