110 Wash. 231 | Wash. | 1920
This is an action upon a promissory note of which the following is a copy:
84,000. Seattle, Washington, Mar. 15, 1917.
On demand after date, we. jointly and severally as principals ¡promise to pay to the order of THE BANK OF CALIFORNIA, National Association, Four Thousand Dollars for value received, with interest from date at the rate of 6 per cent, per annum payable*232 monthly until paid. Principal and interest payable in U. S. Gold Coin, at THE BANK OF CALIFORNIA, NATIONAL ASSOCIATION, in this city.
In case of default is made in the payment of this note and the same is placed in the hands of an attorney for collection, we jointly and severally agree to pay five per cent, of the amount then due as attorney’s fees, if paid without suit, hut if suit he commenced to collect this note, or any part thereof, we jointly and severally agree to pay ten per cent, upon the amount due at the time suit is brought, and in case such suit is prosecuted to judgment, said attorney’s fees equal to ten per cent, of the amount then due, shall be included in said judgment, and such judgment shall bear interest at the rate of ten per cent, per annum. >
All parties to this note, including guarantors, sureties and endorsers, hereby severally waive presentment, protest, notice of nonpayment and any release or discharge arising from any extension of time of payment or other cause.
[Seal] Teller Packing Company,
By Henry Teller, Pres. •
W. T. Hall.
Henry Teller.
H. W. Starrett.
Of the parties to the note, Hall and Starrett alone were served with process. Hall defaulted. Starrett answered, putting in issue by denials the traversable allegations of the complaint and pleading affirmatively the following:
'“Further answering said complaint and as a first affirmative defense thereto, this defendant alleges:
“That, at the time of the execution of the said note described in paragraph 3 of said complaint, this defendant signed the same as an endorser, without consideration, upon the understanding, that the plaintiff would collect the amount thereof with interest from the •defendant, Teller Facting Company, a corporation, as and when said corporation, which was then engaged in the salmon packing business, should receive money from the sale of its pack.
“(6) That the said note is a demand note, and at diverse and different times since the making thereof, .the said Teller-Packing Company, has had on general deposit in an open account with the said plaintiff,.*233 from the sale of its paelc, large sums in. excess of the amount then or at any time due upon the said note, and that this defendant on several occasions notified the plaintiff that the said deposit was on hand, and requested it to make demand upon the said Teller Packing Company, which was primarily liable thereupon for payment of the said note, and to apply so much of said deposit as was necessary to the payment thereof.
“ (7) That this defendant further informed the said plaintiff that said Teller Packing Company was in a precarious financial condition, and that defendant might be injured, but that notwithstanding the defendant’s request the said plaintiff refused and neglected to make application of said deposit towards the payment of said note or any part thereof, or to do anything proper to protect this defendant in the premises.
“ (9) That since the said request was made by this defendant, the said Teller Packing Company has been adjudged bankrupt. ’ ’
The plaintiff denied generally the affirmative allegations of the answer. On the issues as thus formed a trial was entered upon before the court sitting without a jury, in the course of which the plaintiff put in proof tending to substantiate the allegations of its complaint. The defendant, Starrett, thereupon offered evidence tending to substantiate the averments in his answer. To this evidence an objection was interposed which the court sustained; holding, in effect, that the defendant had signed the note as maker, and could not interpose such a defense, as it was applicable only to a party secondarily liable. Judgment was entered accordingly, from which Starrett appeals.
The first question presented by the record is, in what capacity did the appellant sign the instrument; that is to say, is he a maker or an indorser? It is the appellant’s contention that he signed as an indorser. This is founded upon § 17, sub. 6, of the negotiable in
The appellant argues that the place upon which he placed his name on the note is the place usually reserved for witnesses to the signatures of the persons bound by the instrument, and that, for this reason, it is not clear as to the capacity in which he signed. In
We have been cited to no case, and our own researches have discovered none, where the precise question has been presented. In the case of Germania Nat. Bank of Milwaukee v. Mariner, 129 Wis. 544, 109 N. W. 574, it was discussed somewhat, but the real question there presented and determined was whether the defendant was bound upon the note at all, not whether he should be bound as a maker or as an indorser. Our own case of Handsaker v. Pederson, 71 Wash. 218, 128 Pac. 230, also touches the question. In that case, certain parties to the note claimed they were not makers but only indorsers, and the fact that they signed the note in the lower left hand corner was relied upon as a circumstance indicating their purpose. We there said that this circumstance, “if worthy of consideration at all,” was overcome by certain parol evidence introduced at the trial. This case, it is true, is not conclusive of the question, but it is clear that, in so far as it has bearing, it sustains the conclusion we here reach, namely, that a person so placing his signature upon a note signs as maker rather than as an indorser.
Since the appellant signed the note as maker and not as an indorser, can he show in defense of an action
The appellant argues, further, that, where a banker holding a promissory note due on demand receives on deposit from a maker of the note funds sufficient to satisfy it, it is obligated to apply the funds in satisfaction of the note. There are cases which maintain this principle as to one secondarily liable on the note, but it is not the rule as to a maker of the note, or as to one otherwise primarily liable thereon. A bank is entitled, undoubtedly, to set off against a deposit account the amount of a due note held by it against the depositor, but it is not obligated so to do under the penalty of having the note considered as paid.
The judgment is affirmed.
Holcomb, C. J., Mount, Mackintosh, and Bridges, JJ., concur.