90 Wash. 471 | Wash. | 1916
This case presents nothing but a question of fact. The statement of facts shows Barr performed services and furnished materials to the Kerfoot Investment Company in the construction of a hotel building, amounting to $1,594.18, and received from time to time in payment sums aggregating $1,183.82, leaving a balance due on December 18, 1912, of $410.82. On that day, as he and his wife (who was also his bookkeeper) testified, he gave, at the request of E. G. Kerfoot, president of the Kerfoot Investment Company, a receipt for $410.82, in order to waive a lien and satisfy
Later, Kerfoot liquidated the affairs of the hardware company and he and his wife voluntarily offered to, and did, subtitute for the hardware company’s stock four shares of stock of the Kerfoot Hotel Company, a corporation, of the par value of $100 each, on May 1, 1918, and also presented to Barr an instrument to be, and which was, signed by him, reciting a consideration of one dollar and other valuable considerations, and agreeing to sell to E. G. Kerfoot and Gertrude W. Kerfoot the last mentioned stock, at the price of $100 per share, at any time within five years from date, and not to sell or dispose of the stock to any one else without first offering it to E. G. or G. W. Kerfoot. It was also therein stipulated that, “This stock is held as collateral and bears ten per cent interest per annum. It does not participate in any dividends.” This stock was issued directly to Barr by E. G. Kerfoot, as president, and G. W. Kerfoot, as secretary; but, as was said, it was voluntarily substituted by them in lieu of the stock of the Kerfoot Hardware Company and ap
The Kerfoots, husband and wife, contended and testified that the original transfer of four shares of hardware company’s stock was for the purpose of satisfying in full the balance of $400 remaining due on December 18, 1912; while Barr and wife contended that the stock was delivered merely as collateral for the payment of the $400 then remaining unpaid. If the stock was sold absolutely to Barr in payment of the debt of $400, it is strange that they would, so to speak, “keep any strings” on it, that Barr could not sell it to any one else, and that they would pay ten per cent interest upon it while they stipulated that it should not participate in any dividends; and it is strange, also, that they would feel called upon to substitute for the hardware company’s stock, when the hardware company’s affairs were liquidated, an equal amount of stock in the Kerfoot Hotel Company and under a similar arrangement. It was also then agreed, upon the substitution of the hotel stock, that it was held as collateral and that ten per cent interest should be paid upon it, and that it should not be sold to any one else but the Kerfoots. Barr originally attempted to hold both the Kerfoots personallv and the Kerfoot Investment Company for his indebtedness. The trial court very properly held that the Kerfoots could not be held personally for their promise which, as testified to by the Barrs, was made orally, and comes within the statute of frauds, the debt being the debt of the Kerfoot Investment Company or of the Kerfoot Hotel Company.
The trial judge held that there had been no payment of the $400. As to this there is a direct conflict in the evidence between the Kerfoots and the Barrs, and we have con
Affirmed.