29 Wash. 215 | Wash. | 1902
The opinion of the court was delivered by
This is an action upon a promissory note. In their complaint, the appellants alleged, in substance, that the respondents were at all the times named in the complaint husband and wife; that on the 2d day of J'anuary, 1889, the respondent Charles S. Eltinge, in the city of Butte, in the then territory of Montana,, made and delivered to- the firm of Clark & Larabie the’ note in suit, whereby he promised to- pay to that firm $4,270, twelve months after date, with interest, a,t the rate of eight per centum per annum from date until paid; that at the time of the execution and delivery of the note it was allowable, under the laws of Montana, for the contracting parties to- agree upon thei payment of any rate of interest, whatsoever; that, the note had been subsequently duly assigned to the áppellants, who- are now the owners thereof; that the consideration for the note was, used for the joint benefit of both the respondents; that the respondents, at the time and place of the execution of the note, and in order to secure the payment thereof, executed and delivered to the payees named therein a mortgage upon certain real property situated in the, city of Butte, state of Montana,, a copy of which is attached to- the complaint.; that the conditions of the mortgage were not performed,
The respondents- appeared jointly, first demanding a bond for costs^ and afterwards moving that certain parts of the compjaint be made more definite and certain, and that certain other parts be stricken, as frivolous, irrelevant, and immaterial. On the disposition of the motions, they demurred severally on the ground that the complaint did not state facts sufficient- to constitute a cause of action. The demurrers were overruled, whereupon they answered separately; the answer of Josephine Eltinge being an admission of her relationship to her correspondent, the execution and delivery of the mortgage, and a general denial of the other allegations of the complaint. The other respondent answered, admitting his relationship- to- his co-respondent, the execution and delivery of the note and mortgage, and denying generally all other allegations of the complaint. He also answered by an affirmative- p-le-a, in which he alleged that the mortgaged property had been turned over to the appellants on March 1, 1892, with the understanding that he should receive a credit upon the note sued upon for the use and occupation of the property, which use and occupation he alleged to be of the value of $35 per month, — a total of $1,680, — and that no part of
The trial was had before the court and a jury. The appellants first offered in evidence a certain section of the statutes of Montana in force at the time of the execution of the note. The offer was objected to and sustained for the reason that the section of the statutes offered had not been set out. in the complaint. They next introduced the deposition of the appellant Clark. He identified a certain notei as being the note in suit, and testified that it had been duly assigned by the payees named therein to the appellants; that certain payments, enumerating them,, had been made thereon, but nothing more; testifying further, that the respondent Charles S. Eltinge had given the appellants an order to collect the rents from the mortgaged premises, pay taxes, insurance, and make whatever repairs were necessary, and credit the remainder of such rents upon the note, and that certain of the payments soi credited had been derived through that source. He also testified that Mr. Eltinge was in the employ of the appellants at the time the note was executed, and that they advanced him the. money to buy a lot and build a house; that the money was credited toi his account at the time, and afterwards used by him for that purpose; and that Eltinge, with his family, resided for some time in the house so erected, being the property mortgaged to
The respondents move to* dismiss the* appeal for the reason that but one notice of appeal was given. It is argued that, inasmuch as there was a separate judgment in favor of each defendant, that two distinct notices of appeal were necessary, each specifying the particular judgment from which the appeal is taken. We think, however, that the objection is not well taken. Two distinct appeals, could not have been taken and prosecuted by the appellants from the several judgments rendered. So far as the appellants are concerned, there was but one* final judgment, and but one notice of appeal was necessary,
The appellants assign error upon the refusal of the court to permit them to introduce the section of the statute, of Montana. While the record does not disclose it, it appears from the briefs that the purpose of this was to show that the rate of interest contracted for in the note was. not usurious under’ the laws of Montana at the time the contract, was made. But this evidence was rightfully rejected, if not for the reason assigned by the court, on the ground of its immateriality. The rate of interest was not usurious under the laws of this state in force when the contract was made, or under those in force when the action was instituted. Contracts to, pay interest, if lawful under the laws of the state where the contract is sought to. he enforced, are presumed to he lawful under the laws of the place where made; and it was not incumbent upon the appellants, in order for them to recover, either to allege or prove that the specific rate provided for in the note complained upon in this action was not, usurious under the laws of Montana. Nor did they take such a burden- upon themselves by the general allegation in the complaint to the effect, that under- the laws of Montana it was lawful for parties to' contract for the payment of any rate, of interest, although a general denial thereof was made in the answer1. It is only the material allegations of the complaint that are p,ut. in issue by a general denial.
Thei judgments in favor of the respondents seem to. have been based by the trial court upon the ground that the real property mortgaged had been turned over to the appellants in trust, for the purpose of being disposed of by them in satisfaction of the amount due upon the' note; the court holding the appellants could not recover for any alleged balance due thereon until they had first shown
As to the respondent'Josephine D. Eltinge an additional question is suggested. Although she did not join in the execution of the note, she was made a party defendant for the purpose of having the status of the judgment, should one be obtained, determined; that is to say, for the purpose of having it determined whether the judgment could he executed as a judgment for a community debt, or whether it could only be executed as a judgment for the separate debt of the husband. Eor this purpose she was a proper party. McDonough, v. Craig, 10 Wash. 239 (38 Pac. 1034); Gund v. Parke, 15 Wash. 393 (46 Pac. 408). The question, then, is, did the proofs make a prima facie case against her ? It was shown that the consideration for the note was money borrowed and used for the purpose of buying a lot, and erecting a house thereon for the respondents and their family, and that the house, when erected, was so actually used by
The respondents have cited the case of Yeaton v. Eagle, Oil & Refining Co., 4 Wash. 183 (29 Pac. 1051), as maintaining the rule that there is no presumption that the statute law of a sister state is the same as the statute law of our own state. In the main opinion in that case such a rule was announced, but on rehearing the court withdrew what it had said upon the question, and left it open for the future determination of the court. The question was afterwards met and determined in consonance with what is said here in the late case of Gunderson v. Gunderson, 25 Wash. 459 (65 Pac. 791). Hor is this case inconsistent with the case of La Selle v. Woolery, supra. In that case, as will be observed by a reference to the former opinion (La Selle v. Woolery, 11 Wash. 337, 39 Pac. 663, 32 L. R. A. 73) the laws of Wisconsin upon which the decision is based were set out in the pleadings.
The judgments appealed from are reversed, and the cause remanded for a new trial.
Reavis, O. T., and Hadley, White, Anders and Mount, JJ., concur.