38 Wash. 556 | Wash. | 1905
This suit was brought to recover of the defendants, Buttner and Glidden, for an alleged personal liability upon a written instrument, of which the following is a copy:
“$600.00 Seattle, Wash., Feb. 8, 1902.
“Received from Herman Daniel $.600
“Six Hundred . Dollars
which we promise to pay six (6) months after date with interest at the rate of eight (8) per cent per annum.
“H. M. Glidden, Secy. Wm. H. Buttner, President.”
Inasmuch as the sufficiency of the complaint is attacked, we shall set forth somewhat fully the averments thereof. It is alleged that, in consideration of the delivery of said note to the plaintiff, by the defendants and each of them, the plaintiff then and there paid to the defendants, and each of them, the sum of $600, the properly of the plaintiff. It is also alleged that, in order to induce the plaintiff to accept said note, and pay to defendants said sum of $600, the defendants,¿and each of them, then and there falsely and fraudulently represented to the plaintiff that the German American Investment Company owned much property in the city of Seattle, and was building a large number of houses in said city; that the capital stock of the company was $50,000, and that the same was fully paid up; that the company had a large surplus, did a banking business, and was a member of the clearing house in the city of Seattle; that, at any time the plaintiff so desired, the said $600, with interest, would be paid to him by the defendants and each of them. It is further averred that said representations were not only false and fraudulent, but were known to the defendants to be such, and were made for the purpose of creating in the mind of plaintiff the false impression that the defendants were financially responsible, and able to meet their obligations; that, relying upon the representations as true, and believing the defendants, and each of them, to* be financially re
The defendant Glidden answered separately, denying generally the averments of the complaint, and affirmatively alleging that the German American Investment Company was, at the time the loan was made, a duly organized corporation, with power, among other things, to borrow money on its notes, bonds, or other evidences of indebtedness; that the defendants at said time were’, respectively, the duly elected and acting president and secretary of the corporation; that, on or about the 8th day of February, 1902, the plaintiff loaned to the company $600, and that, as evidence of the indebtedness thereby created, the corporation executed and delivered to plaintiff the writing, a copy of which is above set forth. It is also alleged that, if any of the false statements averred in the complaint were made, they emanated from, and were made by, the defendant Buttner, without the knowledge or consent of either the corporation or of the answering defendant, and that the same were never authorized by either the corporation or the answering defendant.
The reply denies that the loan was made to the corporation, and alleges that the money was received and used by the defendants individually, and that the said note is their individual obligation. The reply also admits that the representations were not authorized by the corporation, but denies the remaining allegations of the answer upon that subject.
IJpon the above issues, the cause was tried before the court without a jury. Findings of facts were entered to
Appellant first contends that the court erred in admitting any evidence at the trial, and in not granting a non-suit, for the alleged reason that the complaint does not state facts sufficient to constitute a cause of action against the appellant. This contention is based upon the theory that respondent is estopped by his own negligence from complaining of the representations made. It is argued that the means for determining the truth or falsity of the statements were available to respondent, and that he had no right to rely upon the representations without- availing himself of. such means. The following decisions of this court áre cited by appellant as supporting the argument: Washington Cent. Imp. Co. v. Newlands, 11 Wash. 212, 39 Pac. 366; West Seattle Land & Imp. Co. v. Herren, 16 Wash. 665, 48 Pac. 341; Griffith v. Strand, 19 Wash. 686, 54 Pac. 613; Walsh v. Bushell, 26 Wash. 576, 67 Pac. 216; Samson v. Beale, 27 Wash. 557, 68 Pac. 180; Sherman v. Sweeny, 29 Wash. 321, 69 Pac. 1117.
All of the above cases, except Griffith v. Strand, and
In the more recent case of Mulholland v. Washington Match Co., 35 Wash. 315, 77 Pac. 497, it was argued that one who has the means for discovering the truth may not rely upon representations, when no- fiduciary relation exists, and when he is not overcome by cunning or artifice by reason of being frail in body or mind. This court said:
“It cannot be the law that a person of ordinary faculties may never rely upon representations made to him, even though no fiduciary relation may exist. Each case must depend upon its own circumstances.”
It was held that the facts of that case were not such as brought it within the rule of the cases cited above, and we think the same is true of the case now before us. If respondent had sought to investigate the truth of the representations, in the case at bar, he would have been required to examine, the books and affairs of the corporation; also, to ascertain if it was a member of the clearing house, to examine the records of the county as to real estate hold-ings, and to locate and inspect the large number of houses
In the very recent case of Lawson v. Vernon, ante p. 422, 80 Pac. 559, it was pointed out that the cases cited here by appellant apply where the means of knowledge are as open to the vendee as to the vendor, but that where the false representation is as to a material fact, within the knowledge of the vendor and entirely without the knowledge of the vendee, and where the circumstances are such as reasonably call for reliance thereon, the rule is that the vendee may reply upon the representation. Tested by such rule, the respondent had a right to rely upon the representations of appellant and his codefendant, and the complaint states a cause of action against them.
It is next urged that the court erred in concluding from the facts that the note was the individual obligation of appellant and his codefendant. We think the finding as to the fraudulent acts of (¡Hidden and Buttner establish that the note was their individual obligation. The indebtedness was created because of their fraudulent
We have somewhat extensively discussed the question of liability arising out of the fraud, inasmuch as the transcript, statement of facts, and briefs are largely devoted to that subject. But, aside from that, we think the judgment of the court was right upon another ground which is urged by respondent. It will be observed, by reference to the note, that, while the signatures are each followed by words indicating a representative character, yet no principal is disclosed. The words “German Amer
“Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as tilling a representative character, without disclosing his principal, does not exempt him from personal liability.”
The signatures to this instrument come squarely within the terms of the above section, and the signers are personally liable.
For all the foregoing reasons, we think the judgment of the lower court was right, and it is affirmed.