7 Wash. 382 | Wash. | 1893
The opinion of the court was delivered by
This action was brought by the plaintiff to recover of the defendants moneys which it was alleged he as guarantor of a certain note of the defendants had been compelled to pay for and on their behalf. Defendants, by their answer, denied that such guaranty was made at their instance or request, or that the money which the plaintiff as such guarantor had been compelled to pay was so paid for their use and benefit. The note upon which the contract of guaranty was indorsed was made payable to the Boston National Bank, at whose request, and as a part of the transaction by which it accepted the note, the guaranty was made. The only reason which is suggested on the part of the defendants why the verdict of the jury was Avrong grows out of a claim that the plaintiff failed to prove that the contract of guaranty Avhich he entered into Avas made at their request, or for their use and benefit. And if we Avere of the opinion that the proofs, Avhen taken together, did not establish any further facts than the defendants concede to them, Ave should probably agree with their contention as to the legal propositions involved in the case. But as we Ariew the proofs offered on the part of the plaintiff, they fully establish every proposition which
It is true that the proofs may not have satisfactorily established the fact that there was any direct request on the part of the defendants, or either of them, to the plaintiff at the time he made the contract of guaranty upon which the suit was brought that he should do so; and, if the objections of the defendants as to the proof of other transactions which led to the giving of this note and the guaranty thereof should be sustained, the case of the plaintiff would, perhaps, fail for want of proof. In our opinion, however, the court properly allowed proof to go to the jury as to all the transactions which led up to the giving of this note and the indorsement of the contract of guaranty thereon. Such proofs satisfactorily established the fact that an original note had been made to the plaintiff and another pei’son, with whom he was acting, to secure an indebtedness due to them from one or both of the defendants; that the said plaintiff and the person wdth whom he was acting duly indorsed and guaranteed such original note to the Boston National Bank, and obtained the money thei’eon; that upon such note becoming due it was not paid by the makers, but was taken up by the giving of a new note made by the makers'of the original one either directly to the bank or to the payees of the former note, and by them guaranteed to the bank; that this transaction had been repeated one or more times, but always as a continuation of the original transaction by which the defendants arranged to have their note used by the plaintiff, or the plaintiff and the one with whom he was associated, at the bank for the purpose either of obtaining the money thereon or procuring a renewal of the note upon which the money had been originally obtained.
Such being the fact, it is evident that, if the several notes which were made by the defendants in the transaction had
A technical objection was raised by the defendants, growing out of the manner in which the note and the guaranty thereon were put in evidence, but we think the whole transaction occurring at the trial sufficiently established the fact that the note and the guaranty written thereon were properly in evidence.
The exception to the instruction given by the court to the jury, relied upon in the brief of appellants, is founded upon their contention as to what was shown by the proofs, ' with which contention we cannot agree. It is not claimed but that such instruction correctly stated the law, if there was anything in evidence from which the jury were authorized to find that the contract of guaranty was made at the - instance or for the benefit of the defendants, and as we think there was, it follows that the defendants were not injured by such instruction.
The court in entering judgment included as a part thereof fifty dollars as an attorney’s fee, that being the amount stipulated in the note to be paid by the makers in case ac
The cause will we remanded to the superior court with instructions to set aside the former judgment, and enter a new one for the amount thereof, less said item of fifty dollars, with interest on such amount from the date of the former judgment; the respondent to be allowed costs as upon a full affirmance.
Dunbar, C. J., and Stiles, Soott and Anders, JJ., concur.