Leake

This is an appeal by plaintiff from the judgment and from the order denying its motion for a new trial.

The facts are undisputed and are briefly as follows: On May 10, 1900, at New York, Mrs. Joseph Dunsmuir bought from the plaintiff merchandise at agreed prices amounting to $1,482.33. June 2, 1901, she died without having paid for it. She left a will which was admitted to probate, and letters testamentary were issued thereon on July 15, 1901. Before then, on June 27th, the claim of plaintiff was prepared and sworn to at New York and sent out to San Francisco, where it came into the hands of the executor on July 2, 1901, who, on July 30, 1902, rejected it. This suit was commenced against the executor to establish the claim on October 9, 1902, within three months after its rejection, but more than two years after the original cause of action accrued, and more than one year after the issuance of letters testamentary. The executor afterward resigned, and W. S. Leake was appointed administrator with the will annexed, and was substituted as defendant in his stead.

The goods having been sold and delivered May 10, 1900, an action therefor, to avoid the statute of limitations, would…