40 Wash. 571 | Wash. | 1905
This action was brought to recover the possession of a certain certificate of stock, or the value thereof if delivery cannot he had. The certificate calls for one hundred and fifteen shares of the capital stock of the Seattle Iron & Wire Works, a coi-poration, and it is stipulated in Writing between the parties that, for all the purposes of this
The material facts shown in evidence were about as follows: On or about the 4th day of May, 1904, the appellant, as owner of said stock, entered into an agreement with one Briscoe, pursuant to which the two deposited the certificate with the respondent upon the following written terms:
“Escbow Memobandum.
“Seattle, Wash., May 2nd, 1904.
“The attached certificate of stock for one hundred and fifteen (115) shares of the Seattle Iron and Wire Works is deposited with the American Savings Bank & Trust Co., subject to the following conditions: The stock is the property of A. G. Boyd and is deposited by him to be delivered to S. C. Briscoe or order upon said S. C. Briscoe paying therefor two thousand ($2,000) dollars in the following manner and on or before the following dates, to wit: The sum of $100.00 paid upon depositing the stock this date. The sum of $200.00 to be paid May 23rd, 1904. The sum of $200.00 to be paid June 23rd, 1904. The sum of $100.00 to be paid July 23rd, 1904, and on the 23rd of each succeeding month thereafter the sum of $100.00 until the whole purchase price is paid. In case of failure to make any payment the American Savings Bank & Trust Co. is instructed hereby to deliver the stock to said A. G. Boyd or his order. In case all payments are made then said American Savings Bank and Trust Co. is instructed to deliver said stock to said S. C. Briscoe. All pay
Respondent on the same day accepted the possession of the certificate, with the above memorandum of agreement attached thereto. The one hundred-dollar cash payment made on that day was, at appellant’s request, placed to the latter’s credit in the respondent bank, and it was understood that subsequent payments should be likewise credited. Soon after this time, appellant was making arrangements to go to San Francisco, where he expected to remain for some time. Prior to going away, he consulted with respondent’s manager about the best manner to draw for this money while he was away. The manager told him to draw checks upon his account with respondent through the latter’s San Francisco banking correspondent. This was accordingly done while appellant was in San Francisco. It will be noticed from the foregoing quoted memorandum of agreement, that the sum of $200 was to be paid on the 23d day of May, a like sum on the 23d day of June, and $100 on the 23d day of each succeeding month. The following sums were by respondent placed to the credit of appellant’s account"
“May 4th...................$100.00
May 25th ................. 200.00
June 24th.................. 200.00
July 29th ................. 100.00
Sept. 26th................. 100.00
.................... 100.00
Oct. 24th.................. 100.00
Fov. 23d.................. 100.00”
It will be seen that the credits, and the several amounts thereof, correspond with the number of months, and the amounts to be paid in those months, inclusive of the month of Fovember. There is some discrepancy between the dates of some of the deposits and the dates for payment named in the contract; but it does not appear when the payments were actually made “at the American Savings Bank and Trust
Did the court err in instructing a verdict for respondent ? The remarks of the trial court, appearing in the record, indicate that he believed there was a substantial compliance with the contract, in that it was understood that appellant would from time to time draw upon respondent for this money during his absence, and that the money would be ready-to meet such demands. The manager of the bank testified that the assignee of Briscoe had arranged with the bank to meet the payments for him. The court held that the bank thereby became his agent to make the payments, if he should overlook them, and the manager also testified that appellant agreed that
We think the court did not err in its instruction, and the judgment is affirmed.
Mount, 0. <L, Fullebton, Rudkin, Dunbab, Root, and Cbow, JJ., concur.
Reported in 82 Pac. 904.