29 Wash. 78 | Wash. | 1902
The opinion of the court was delivered by
Appellant is the executor of the estate of Gr. W. Hertges, deceased. Eespondent is maintaining
“Bank of Montesano, Montesano, Wash., Feb’y 15, 1897. On ox before May 15, 1897, I promise to pay to- G. W. Iiertges, or order Two Hundred and Forty Dollars fo-r ihe account Bank of Montesano-, Montesano-, Wash. Value- received. Payable in ease taxes on Bank of Mo-ntesano- personal property are not rebated on or before that time, or such part, of the above sum as may not be rebated on or before that date. F. L. Oarr.”
The amended complaint alleges that on or about the 15th day of February, 1897, respondent was a stockholder and a member of the board of directors of the Bank of Montesano-, a corporation doing business in Montesano-, Ohehalis county, Washington, and that on or about that date the said bank made a sale of a portion of its assets to said Hertges in consideration of his assuming certain liabilities due from said bank to- its creditors; that amo-ng the liabilities of said-bank was an item o-f personal property taxes for* the year 1895, then due-, in the aggregate sum of $842.78; that the said item made the- liabilities assumed by Hertges exceed thei amount of assets purchased by him in the sum of $240, and that said note in question was made by respondent to- said Hertges as a guaranty that said item of taxes would be rebated by the board of co-unty commissioners, on account of excessive taxation, in at least the sum o-f $-240, and so that the assets received by him in said sale would equal the liabilities assumed by him; that, in case no- rebate of said taxes was secured, then respondent was- to- be liable upon said note in the amount o-f the face thereof, but that it was then and there- agreed between respondent and said Hertges, that, should said personal property taxes for said
It is assigned as error that the court overruled the demurrer' to. the amended complaint. The only point suggested under this assignment is that according to the complaint. the note was paid, and was therefore valueless. Appellant submits that there is no affirmative remedy to recover such valueless paper. We think the point is not well taken. When an outstanding note has been paid, it is not only the right of the maker to. have possession thereof, hut it is a duty he owes to himself and others to secure control of it, and thus prevent any possibility that it may, by mistake or otherwise, pass into, the hands of a purchaser. Timely care in the exercise of such right may. prevent subsequent troublesome litigation. The demurrer was properly overruled.
It is next assigned that the court erred in admitting evidence to vary and contradict the terms of the note. The evidence referred to related to what was intended by the language of the note and by the parties, as alleged in the complaint. The court expressly stated that the evi•clence was not. admitted to vary the terms of the instrument, hut for the purpose of explaining what was intended by the writing. It was the view of the court that •the language used in the note was ambiguous, by reason ■of the use of the words “or such part of the above sum as may not he rebated,” without stating to wha.t the words “above sum” related. The court held that parol evidence was necessary to explain whether said words related to the sum mentioned as the amount of the obligation of the note, or to the amount of taxes referred to therein. Standing alone and unexplained, the note, in the respect men
It is next assigned that the court erred in admitting the testimony of respondent and other witnesses on the ground that the payee of the note is dead, that appellant is his executor, and that the witnesses are interested in the controversy. It is urged that the testimony was admitted in violation of the provisions of § 5991, Bal. Code, which precludes a party in interest or to the record from testifying as to< any transaction had by him with, or any statement made to him by, a deceased person, when the adverse party sues or defends as executor, administrator, or legal representative of such deceased person. The testimony of respondent himself as to such transactions and statements was all stricken by the court, and was not considered,
The next error assigned is- that evidence was admitted to prove that a rebate of taxes was made It is insisted that the note referred to a lawful rebate, and that proof of an order of the county commissioners or city council was not evidence of a lawful rebata It was the view of the super
It is last assigned as error that the court denied the motions for non-suit and for new trial and rendered judgment for respondent. We think the evidence was sufficient to support the court’s finding that the meaning of the language used in the note was to secure said Hertges fortheexcessof liabilities assumed by him over the assets transferred to him in his deal with the bank of Montesano, and that, in case a rebate or reduction of personal property taxes equal to or in excess of $210 was obtained, the note was to be returned to the maker; that, if a less amount of reduction was, obtained, such less amount should be credited ■upon the note, and respondent should be liable for the difference. The evidence showed a settlement of the taxes
The questions involved in the motion for new trial have already been discussed. We believe no material error was committed, and the judgment is affirmed.
Reavis, O. J., and Dunbar, Fullerton, Anders, Mount and White, JJ., concur.