22 Wash. 536 | Wash. | 1900
The opinion of the court was delivered by
On May 1, 1891, the defendants, Henry Bash and Susan W. Bash, executed a promissory note for $1,225, payable to the order of defendants A. W. and Plora S. Bash ninety days after date, with interest from date until paid at the rate of one per cent, per month. To secure the payment of said note the makers thereof, on said May 1, 1891, executed and delivered to the payees therein named a mortgage on lots numbered 8 and 9, in block 3, in the Highland Addition to the city of Seattle. Thereafter the said A. W. and Flora S. Bash assigned the note and mortgage to the Washington National Bank of Seattle. On June 29, 1892, the plaintiff, Blewett, and others guaranteed the payment of this note .on or before October 27, 1892, to which last mentioned date the time of payment of the note was extended by the bank. After the note became due, and on December 20, 1892, the plaintiff, Blewett, paid the principal and interest then due on the note, and received both the note and mortgage, uncanceled, from the bank. On March 21, 1893, the makers of said note and mortgage sold and conveyed by deed duly signed, witnessed, and acknowledged, the premises described in the mortgage of May 1, 1891, to the defendant Charles Bruhn; and in said' deed they covenanted that the property therein described was free from all liens and incumbrances, save a certain mortgage, which they agreed to pay off and satisfy. Prior to the time this deed
It is claimed by the appellants that the trial court erred in admitting the mortgage in evidence, for the alleged reason that there was no proof of its execution. It appears that at the time when it was proposed to offer the mortgage in evidence, something was said about introducing a certified copy, which it was understood would be presumptive evidence of execution; and it appears from the record that the appellants waived the production of the certified copy, and the respondent thereupon introduced the original instrument. The objection made to its introduction was that it was incompetent and immaterial. Ho suggestion seems to have been made to the court that the execution of the deed had not been proved, and, if such objection had been made, it would have been unavailable, for the reason that, under our statute as construed by this court in Gardner v. Port Blakely Mill Co., 8 Wash. 1 (35 Pac. 402), the deed, with the certificate of acknowledgment in due form by the notary public, constituted prima facie proof of execution.
It is further claimed by appellants that the court erred in admitting in evidence, or considering, the guaranty of
The learned counsel for the appellants concede this to be the settled law of this state, but they insist that the rule is not applicable here, for the reason that, in the very nature of things, the erasure of a signature must follow execution. This is, no doubt, true as to the person whose name is erased; but it does not necessarily follow, as claimed by the appellants, that the release of one of several joint obligors releases all the others. In the first place, it may be well to observe that no release was pleaded in this case; and, in the second place, neither of the other parties who signed the instrument is claiming to be released from the obligation thereof. On the contrary, the respondent is claiming and insisting that he paid the note by reason of his guaranty to pay, and that he is entitled to be subrogated to the rights, remedies, and security possessed and held by the Washington National Bank, at the time of payment. The release of one of several joint guarantors or sureties will not effect a discharge of the others, unless the release of the one is granted without the
If this were a direct action on the guaranty, the appellants’ contention that, being joint and not joint and several, it was inadmissible under the allegation of the complaint that the plaintiff in writing guaranteed the payment of the note, would not be without merit. But the right of subrogation claimed by the respondent does not depend upon the question whether he was or was not a several guarantor, but upon the fact that he was bound by the guaranty and paid the debt of his principals. It must be borne in mind that the complaint in this case, as we have seen, also alleges, in effect, that the plaintiff (respondent), as guarantor, paid the amount due on the note to the Washington National Bank, the then owner and holder of the note and mortgage. If, however, there was in fact a variance between the allegations and the proof in this particular, it was not fatal to the cause of action; and, under our statute providing that this court shall consider all amendments as made which might have been made in the court below, it would be our duty to consider the complaint as amended to conform to the proof, rather than to reverse the judgment on account of the variance. It is
At the trial the appellants, in order to prove payment of the note and mortgage by the defendants Bash, introduced in evidence, over the objection of the respondent, an alleged copy of a contract entered into between one Hammond and defendant Henry Bash, dated June 17, 1892, whereby the latter, among other things, authorized the former to pay all claims against him, the said Bash, then held by the Washington national Bank of Seattle, for which they then held certain securities, among which were $75,000 of stock of the Culver Gold-Mining Company, and wherein and whereby the said Hammond agreed to tender within a reasonable time to the Washington national Bank, for the said Bash, all sums due from him to the Washington national Bank, amounting to $6,869.30, with interest from May 17, 1892, and to take up all stock and other collaterals held by said Washington national Bank as security, provided the said Washington national Bank would accept the same and deliver to said Hammond the said stock and other collateral securities so held by it as security; and it was agreed in said contract that all such stock and other collaterals taken up should be held by the said Hammond as security for the payment of all sums advanced by him according to the provisions of the agreement. The party representing said Hammond in this alleged agreement was called as a witness by the appellants. He, however, denied having signed any such agreement as set forth in the alleged copy, but admitted that he agreed with Mr. Bash to take up the mining stock owned
We perceive no error in the record, and the judgment of the court below is therefore affirmed.
Dunbab, O. J., and Reavis, J., concur.