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ten by him to the maker, stating that he had name, and returned them by mail to the “indorsed and returned" the notes, cannot be

plaintiff. At the time the notes were execonstrued as reducing his liability to that of an

cuted, Sherwood was indebted to the plain. indorser; it appearing that he fully understood the effect of his signature, as given.

tiff in the sum of $1,344 and some cents, and 4. Parol testimony is not admissible to $600 in money was thereafter sent by the show that one signing a note as maker is in fact

plaintiff to Ault, and Sherwood was credited only an indorser.

with the sum of $650 for supplies to be furAppeal from superior court, Snohomish nished in the future, the whole making up county; John C. Denney, Judge.

the amount and consideration of the notes. Action by the Tacoma Mill Company Two defenses were set up by the defendant against E. D. Sherwood and John B. Ault. Ault to the notes in question. The first one Judgment for defendant Ault, and plaintiff was that he executed the notes under a parol appeals. Reversed.

understanding or agreement that he was not

to be liable thereon, but that the same were Crowley, Sullivan & Grosscup, for appel.

executed by him for the purpose of allowing lant. Ault & Munns, for respondent.

the plaintiff to come in under the mortgage

previously given by Sherwood to Ault, and SCOTT, J. This action was commenced in

that, according to such understanding, he the superior court of Pierce county by the was to be paid first out of the proceeds of the Tacoma Mill Company against E. D. Sher- logs. This testimony was admitted over the wood and John B. Ault, to recover the amount objection of the plaintiff. It is contended claimed to be due upon two promissory notes, that the same was incompetent on the ground each for $1,297 and a few cents. Both de.

that parol testimony was inadmissible to fendants appeared by H. G. Munns, as at- vary the terms of the written instruments, torney, and filed a general demurrer to the

and we are of the opinion that the point is complaint. At the time of filing the demur

well taken. A great many authorities have rer said defendants moved for a change of been submitted by the respondent as support. venue to Snohomish county, which was grant- ing his contention, but we do not think any ed. The demurrer was overruled, and the of them go to the extent claimed. The exe defendant Sherwood filed no answer. De- cution of the notes was admitted by Ault, fendant Ault answered, and the cause pro- and the consideration therefor was clearly ceeded to trial as against him. A verdict | proved. Ault admitted having personally reand judgment being rendered in his favor, ceived the $600 in money from the plaintif plaintiff appealed.

on these notes after their execution, although The respondent moves to strike the state he claims that he received and disbursed it ment of facts, and to dismiss the appeal, on for Sherwood's benefit. The purport of this the ground of failure to serve the notice of defense was to show that Ault was not to be appeal and notice to settle the statement. It liable upon the notes in any event, and the is admitted that due service was made on effect was to render his signature thereto of said H. G. Munns, but it is contended that no value whatever. The law will not per: Munns only appeared for the defendants in mit the maker of a note, where there is a the superior court of Pierce county, and that consideration, to show an oral agreement after the cause was transferred to Snoho- that he was not to be liable at all on the mish county he was no longer an attorney note. It has been frequently held that a per: therein. It does not appear that any substi. son signing a note on its face may show that tution of attorneys was made, and said he signed it as a surety, and not as a prin. Munns continued to be an attorney of record cipal, but none of the cases go so far as to for defendants. In view of this, a proper hold that he can show he was not to be liaservice was made, and the motion is denied. ble in any wise.

It appears that the defendant Sherwood The next defense was that Ault was an was conducting a logging business in Snoho- indorser on the notes; that they were not mish county; that he was indebted to de. presented for payment, and notice given to fendant Ault in the sum of $3,500; that he him as an indorser; and that, therefore, his executed a chattel mortgage to Ault upon all liability was extinguished. It appears that of his logs, in the sum of $7,000, to secure at the time he transmitted the notes to the the indebtedness aforesaid, and such further plaintiff he inclosed therewith a letter stat. advances as Ault might make to assist Sher. ing that he had “indorsed them.” He claims wood in getting his logs to market, which that in consequence thereof he can only be logs the Tacoma Mill Company was buying. held, if at all, as an indorser. No reason is Ault being unable to furnish any more offered for not writing his name upon the money, Sherwood applied to the Tacoma Mill back of the notes, instead of signing them as Company therefor, and was informed that a maker. He does not claim that he was they would furnish him the money applied misled in any way in executing the notes, for if Ault would execute the notes with him. or that he misunderstood the apparent effect Thereupon the two notes in question were thereof. In fact, it appears that he was an prepared, signed by Sherwood, and sent by attorney at law. He does not even claim :he Tacoma Mill Company to Ault, who also that he intended to sign the notes differently signed them, immediately under Sherwood's than he did sign them, but he contends that the notes and the letter in question should legal sense belongs to, or is included within be construed together, as one instrument, the terms or legal effect of, the contract." and that the effect was to render him liable It has also been held, in suits between inonly as an indorser. If the usual and tech- dorsers upon a note, that it may be shown nical meaning is to be given to the word “in- | that their liability is a joint instead of a dorser,” in this instance, it is apparent that succeeding one; but this was upon the ground the letter was in direct conflict with the that the contract, in such case, is one imnotes, and the question is, which should gov- plied by law, and that it was not in violation ern? It is not difficult of solution, for Ault of the rule as to admitting parol testimony to himself was responsible for the confliet, and, vary a written instrument. But none of these It seems, carelessly so, if he only intended to cases sustain the proposition contended for be held as an indorser, and the notes and here. The liability assumed by a surety upletter should be most strongly construed on a note is essentially different from that against him. It is true, the letter transmit- assumed by an indorser. The surety is liating the notes said that he had indorsed ble the same as the principal. It is true, them, but it appeared just as plainly by the the payee may not enter into a subsequent notes that he had signed them as a maker. contract with the principal of the note, exHe placed his name upon the face of the tending the time of payment, etc., without notes intentionally, and delivered them as a the surety's consent, and still hold him. But present contract; and the plaintiff was jus- as to the indorser the situation is entirely tified in receiving the notes, and in holding different. Upon the maturity of the note Ault as a maker, under the circumstances. the holder is called upon to take some action, In fact, it would appear as though the word in case of nonpayment, to maintain his claim “indorsed" had been used in the letter in- against the indorser; and, if proof was to be advertently, or in the sense of having signed admitted that a person signing a note as a them, rather than in its strict technical maker was in fact only an indorser, it would sense.

be a plain violation of the rule as to admitIt is contended that, independent of this, ting proof of a contemporaneous parol agree Ault could show the character in which he ment to vary the terms of a written instruexecuted the notes, and could show that, al- ment. No case has been called to our attenthough he signed upon the face of the notes, tion where any court has held that the maker he did so as an indorser only. Much has of a note may show by such testimony that been written upon this subject, and it would he was simply to be held as an indorser. be an interminable as well as practically In support of the respondent's contention useless task to undertake to review the nu- that he should only be held as an indorser, merous cases. A majority of the courts it was claimed that he signed the notes after have held that the maker of a joint and sev. their delivery to the plaintiff. We do not eral promissory note may show by parol teg- think this is sustained by the proofs, as it timony whether he signed the note as substantially appears from his own testimoprincipal or as a surety, with knowledge of ny that the notes had not been delivered, the payee.

The reason for this is well stated but had been previously signed by Sherwood, in the case of Hubbard v. Guerney, 64 N. Y. and left with the plaintiff, for the plaintiff 457, to be as follows: "The contract was in to transmit to Ault. This was done, and all respects the same whether the defend- after Ault had signed and returned the notes ant was principal or surety. In either case the remainder of the consideration, above it was an absolute promise to pay one thou- the existing indebtedness of Sherwood to the sand dollars one day after date,-nothing plaintiff, was paid. And, under the weight more and nothing less. There is neither con- of the authorities, a person writing his name dition nor contingency. It would have been upon the back of a note before delivery will precisely the same contract if the defendant be held as guarantor or maker, and not as had added the word 'surety' to his name. The Indorser. addition of that word would not have varied The appellant has requested, in case its it in the slightest degree. The only service contentions in the premises are sustained, it would have performed would have been that the cause be remanded, with. instructo give notice to the other party of the fact. tions to enter up a judgment in its favor upon If this is shown aliunde, it would have been the notes. No objection was made thereto equally effective. • It is an extrinsic by the respondent. There seems to be no circumstance, not affecting the contract controversy as to the facts, which were propmade, but which operates, when knowledge erly admissible in evidence, and therefore of it is brought home to the creditor, to pre- the request will be granted. The judgment vent him from changing the contract, or is reversed, and the cause remanded, with making a different one with the principal instructions to enter a judgment in favor of debtor, without the consent of the surety, or the plaintiff against the defendants for the from releasing any security held for the pay- amount due upon the notes, and for the attorment of the debt, and imposes the duty of Dey's fee, to be fixed as stipulated. enforcing the contract, when due, upon re quest of the surety. The right to do these HOYT, ANDERS, and GORDON, JJ., COD acts, or omit to perform such duty, in no cur.

а

(5 Wyo. 102)

PEABODY v. HUTTON. Supreme Court of Wyoming. April 4, 1895.) EXECUTORS AND ADMINISTRATORS-CLAIMS AGAINST

ESTATE. The invalidity of an order of the probate court transferring a decedent's property to an administrator with the will annexed, upon his giving bond to pay the debts of the estate, does not entitle a creditor thereof to have a portion of the property applied to the discharge of his judginent against the administrator, except in due course of administration.

On rehearing. Motion denied.
For former opinion, see 37 Pac. 694.

CONAWAY, J. Plaintiff in error still contends that the judgment against George L. Huttor, to satisfy which he seeks to subject the property in controversy to sale upon execution, is a judgment against George L. Hutton, as administrator of the estate of Rowena H. Hutton, deceased; also, that the order of the probate court transferring this property to George L. Hutton, upon his executing a bond to pay the debts of the estate, is void. If this all be true, it results that there has been no administration of the estate, and no ascertainment of its assets and liabilities. It does not entitle plaintiff in error to have the property in controversy, or any portion of it, applied to the discharge of his claim, in whole or in part, except in due course of administration. Rehearing denied.

for plaintiffs, defendants other than said company appeal. Affirmed.

Appellants were defendants below,-a suit in equity, brought by trustees to foreclose a deed of trust upon 40 acres of mining land in the county of Lake, to secure payment of debenture bonds for £25,000, issued in England. In May, 1881, the defendant the Olathe Silver Mining Company, Limited, was organized in London under the joint-stock company acts of England of 1860 to 185). About the middle of July, 1881, the company purchased from one George Berry the 40 acres of mines above mentioned for £100,000 sterling, £30,000 of which was to be paid in cash and £30,000 in shares of the company. Berry conveyed the property by deed The company paid of the purchase price 50,000 shares of the capital stock and £31,140 cash, leaving a balance due Berry of £18.860. By the articles of association the company was authorized to borrow money, issue debenture bonds in payment, and secure the same by mortgage upon its property. The sum of £18,800, due and owing to Berry, remaining unpaid, on the 17th of July, 1882, Berry agreed to take 1,8sü mort. gage debenture bonds of £10 euch in full satisfaction and discharge of his debt. On the 24th of July, 1882, the board of directors of the company met, and by a . resolution of that date concluded to issue debenture bonds to the amount of £25,000, secured by mort. gage upon the property of the company above mentioned, of which amount Berry was to receive bonds to the value of £18.860, and the proceeds of the remaining bonds, amounting to £6,140, were to be sold, or used for obtaining money for development and working capital. A mortgage of the 40 acres of mineral land in Lake county was executed to secure the £25,000 issue of bonds. Shortly after its execution, the deed of conveyance from Berry to the company was recorded in Lake county, in this state, and on the 21st of October, 1882, the deed of trust or mortgage was filed for record in the same county. The bonds of Berry were delivered to and received by him. Of the remaining bonds, 218 were sold for cash at par value, and 110 were deposited with creditors as se curity; the total number of bonds issued being 2,214 of £10 each, drawing interest at 8 per cent. per annum. Of the bonds issued by the company 2,500 of £10 each had six coupons attached, each for the payment of one-half year's interest. Thomas Eyre Foakes, Herman Carl Schultz, and Theodore H. Lowe were made trustees in the deed of trust. On November 19, 1885, Schultz dieu, and Harold Carter was appointed to succeed him. On May 20, 1886, Foakes resigned, and Thomas A. Masey was appointed his successor; and before the bringing of this suit Masey resigned, and John Gaskell was ar pointed his successor. The number of bonds held by the plaintiffs at the time of bringing suit aggregated 1,257 of £10 each,

POTTER and SCOTT, JJ., concur.

(6 Colo. App. 1) OWERS et al. V. OLATHE SILVER MIN.

CO., Limited, et al. (Court of Appeals of Colorado.

March 11,

1895.) ATTORNEY AND CLIENT PURCHASE OF ADVERSE INTEREST- PLEA OF LIMITATIONS-TIME FOR FIL ING-SECONDARY EVIDENCE-RECORD OF DEED.

1. An application, a year and a half after the issues in the case were made up, to file an amended answer setting up the statute of limitations, was properly refused.

2. A stockholder of a corporation, while acting as its attorney, purchased an adverse interest in its property sold at a sheriff's sale, and sold to others undivided interests in the property so purchased, and afterwards brought suit and obtained judgment for services as attorney during the period covered by such adverse transactions. Held, that a court would be warranted in rejecting and disregarding his claim of title, as being a fraud on his employer.

3. Gen. St. 8 217, providing that unacknowledged deeds may be read in evidence if their execution he otherwise provell, an unrecorded deed given by a foreign corporation may be introduced upon proof of its execution by the corporate charter and official acts and resolutions.

4. When a deed is in the custody of a foreign court, from which it cannot be taken, the record of the deed is admissible.

Appeal from district court, Lake county.

Action by trustees against the Olathe Silver Mining Company, Limited, and others to foreclose a deed of trust. From a judgment

amounting to £12,570, interest upon them, was amended in the same manner. Defend£6,513; total, £19,083, or, in round numbers ant Owers also alleged in his answer that in in federal currency, over $95,000. The bonds 1883 he was regularly appointed attorney of were due and payable on the 1st day of Au- the defendant company; that the officers, gust, 1883. The company defendant made through collusion and conspiracy, claim such default, and paid neither principal nor in- appointment was revoked, and asked leave terest. Appellants Owers, Scott, and Man- to file the answer of the defendant company, ning and some others claimed to be the own- and defend it, by virtue of being a stockers of the mortgaged mining property as ten- holder. Upon this application no order apants in common,-First, by virtue of a sale pears to have been made. A trial of the of the proper.y made on the 14th day of De- case was had upon the evidence of the plaincember, 1884, by the sheriff, under an execu- tiffs, defendants offering none, resulting in tion against the property of the defendant a judgment for the plaintiffs, and a decree company, and a conveyance under such sale; declaring the deed of trust a valid and existsecond, defendant Owers claimed a lien upon ing mortgage, and the prior lien upon the propthe property by virtue of a judgment against erty, and ordering the property to be sold, the defendant mining company for $2,000, without redemption, by the trustees, to satisdate not given, but long subsequent to the fy the claim of the plaintiffs. The court also execution and record of the deed of trust. found that the defendant Owers was the While this action was pending, in June, 1891, owner in fee of one-fourth and Manning and the defendant company went into voluntary Scott of one-eighth of the property, but that liquidation under the winding-up acts. An such title and interest were subject to the officer appointed by the high court of chan- mortgage and indebtedness involved in this cery was put in charge of its affairs and

suit. everything pertaining to it. By the com

Joseph W. Taylor, Harvey Riddell, and plaint it was prayed that the priority of dif- J. M. Maxwell, for appellants. Chas. C. Parferent liens be decreed, and strict foreclo

sons and F. L. Baldwin, for appellees. sure had under the trust deed. The defendant the Olathe Company filed an answer by REED, J. Although the finding of the the defendant Owers, appearing as its at- court was that Owers was the owner of the torney, on November 18,1889. Defendant Ow

undivided one-fourth and Manning and Scott ers filed his answer November 22, 1889. The

each owners of one-eighth, such finding was answer of defendant Scott and Manning was harmless, as the court further found such infiled January 29, 1890. By the answer of terests were subject to the lien of the deed the mining company its corporate existence, of trust; but we are at a loss to know upon and the purchase of the mining property as what the court based its decree of such ownalleged in the complaint, was admitted, and ership. It was alleged in the pleadings, and a general denial of all other ailegations. For the interest of Owers stated in his affidavit a special defense it was alleged that it never filed in support of his motion to amend the received any consideration for any of the answer, but no proof was offered in support bonds mentioned in the complaint, etc. In

of or to establish any title or lien in any the answer of the defendant Owers he claim

of the three defendants who attempted to ed to be an owner of an undivided one-fourth contest plaintiffs' suit; nor was any proof interest in the property by virtue of a sher- offered to establish the claim of Owers that iff's sale made in 1884, from which he de

he was a stockholder. Consequently, as far raigned his title. That he also claimed a

as they were concerned, the result was equivlien upon the property by a judgment ob- | alent to a default. The appearance of Owers tained against the company, for $2,000, in for the defendant mining company was at March, 1885. Manning and Scott answered least questionable. No authority was shown. that they each were owners of an undivided It was stated in his affidavit that he was duly one-eighth of the property, with titles under appointed, in 1883, as the attorney, but the the same judgment and sale in 1884 as al- officers, by“conspiracy and collusion," claimed leged by Owers. Replications were filed to such relation or authority had been revoked; these answers March 13, 1890. On July 30, but at what time is not stated. He after1891, defendant Owers made application to wards asked to be allowed to defend for the file amended answers for himself, Manning, company, as its attorney, by reason of his and Scott, based upon his own affidavit, and being a stockholder; and that he was a stocktendered the proposed amended answer of holder was never proved, nor the motion himself, in which, in addition to the allega- granted. As he, in the year 1884, as alleged, tions contained in his former answer, he commenced to assert title through a judgment pleaded the statute of limitations of three and sale of the property, and shortly after years, and also the general statute of limita- obtained a judgment for $2,000 against his tions of six years. On August 13, 1891, the client, which he asserted as a lien, it would court denied the application for leave to file seem that, if the authority had not been rea plea under the three-years statute of limi- voked by the company, his own acts of antations, and allowed a plea of the general tagonism were sufficient to sever the relastatute of limitations to be filed, which was tion. His acts were so inimical to the rights filed; and the answer of Manning and Scott and interests of his clients as to conclusively show the ending of the relation, and his by counsel of appellees in resisting such conknowledge and acquiescence. And in his affi. tention. The right to interpose the plea was davit, filed July 30, 1891, he alleges that at based upon the affidavit of defendant Owers, the time of filing the answers of himself, filed July 30, 1891, in which he says that at Manning, and Scott,--as late as January, the time of filing his answer and those of 1890,-he was ignorant of the default of the Scott and Manning he was under the imprescompany in payment of interest, and the vol- sion and belief that the three-years statute of untary dissolution of the company. In the limitation had been repealed, and that the act conduct and disposition of this suit his in- repealing it and fixing the time at six years terests were so opposed to his alleged client, was valid, and proceeds: “That the district the mining company, that his own defense court of Arapahoe county has recently decidand that of the company were incompatible. ed that the said act of 1879, which purports Had the attention of the court been called to to repeal said section 1686, Gen. Laws, and to it, or his authority to appear called for, it change the period of limitation from three to must have resulted in his answer for the six years, is void, not having been properly company being stricken out, and a default enacted, and that said section 1686 is still in taken against the company. As it was, his force," etc., and asked to file an amended anrelation to the company being such as to pre- swer, setting up not only the three-years limclude his appearance to represent it, and itation, but also the general act of six years. neither he nor his associated defendants hav

Although the district court may have held ing shown any interest in the property in as stated, it not being a court of last resort, controversy, the finding and decree must have such decision was far from being conclusive gone as it did as a matter of course. Except of the question, and could hardly be deemed for the finding of the court that the parties a proper basis for the action of a court of conhad interests in fee, appellants would be re- current jurisdiction. It certainly could not garded as volunteers in the litigation, with

be regarded as a reason for tiling a plea of out any legal standing in this court upon ap- the six-years statute of limitations. We do peal.

not intend to discuss or decide the constituPlaintiffs held in bonds of the company and tionality of the act repealing the three-years accrued interest over $80,000 against the prop- limitation act. Suit was instituted March 11, erty. The alleged interests of the defendants | 1889. The supposed answer of the Olathe was the result of a judgment of $500, di- Company by defendant Owers was filed Novided into fourths and eighths, obtained after vember 18, 1889; the answer of Owers, Nothe mortgage, and asserted as a title, adverse- vember 22, 1889; the answer of Scott and ly, while the principal defendant claimed to Manning, January 29, 1890; replications filed be the attorney. The equity of the decree, un- February 17 and March 19, 1890. The applider the circumstances, cannot be questioned, cation to plead the statutes of limitation by and we might with propriety stop at this amended answer was made July 30, 1891, point, and affirm the findings and decree, but nearly a year and a half after the issues had the zeal, labor, and ability expended by coun- been made up. In Cross v. Moffit, 11 Colo. sel for appellants demand greater considera- 212, 17 Pac. 771, it was held: “This statute tion and attention, and, although the defense [of limitations] is a personal privilege to be appears throughout to have been far more

relied upon or not as the debtor may choose. technical than substantial, it was maintained There is no legal presumption that he will upon the trial with marked ability, and is elect to plead it.” It may be waived, and, urged in the same manner in this court. where not pleaded in the first instance, it is There are 16 assignments of supposed errors. presumed to have been waived. “Another The first: That the court erred in denying general rule of great practical importance is appellants' motion for leave to plead the re- that the bar of the statute must be interpealed statute of limitations of three years. posed by the diligence of the debtor, and as The second to the fifth, both inclusive, are early as possible.” Wood, Lim. Act. 7. specific allegations of error in the admission "The statute being a strict defense if a party of evidence of the plaintiffs. The remaining omit to plead it, the court will not relieve 11 are general and formal. It seems hardly him by allowing him to amend by adding the necessary, in assigning errors, to print a page plea.” Angell, Lim. $ 285; Jackson v. Varick, or two of supposed errors dependent upon the 2 Wend. 2014. “The plea of the statute cannot preceding ones,-conclusions naturally and in- be amended, though the amended plea is filed evitably following the finding as to those al- | before the rule day has expired. But, if the leged specifically. Evidently the contention plaintiff amends his declaration, the defendthat the cause of action was barred by the ant may plead the statute anew.” State v. general statute of limitations was abandoned, Green, 4 Gill & J. 381; Reed v. Clark, 3 Mcbut in appellants' oral argument, quite at Lean, 480, Fed. Cas. No. 11,643; Nelson v. length, and in the printed argument of coun- Bond, 1 Gill, 218. "Nor will a default be tak. sel, the contention is that the act repealing en off to allow the plea of the statute to be the statute of three-years limitation was un- made." Sheets v. Baldwin, 12 Ohio, 120. constitutional and void; consequently, that And see Cross V, Moffit, supra; Mclver v. such statute was in force and available as a Moore, 1 Cranch, C. C. 90, Fed. Cas. N. 8,831; defense. Much time and labor were expended Wilson v. Turberville, 1 Cranch, C. C. 492,

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