87 Wash. 40 | Wash. | 1915
This action was brought to recover upon a promissory note executed by George V. Wetzel and wife in favor of respondent and afterwards indorsed by appellant.
Appellant set up in his answer, and the question seems to have been tried out to the jury, that he was not to be bound by his indorsement of the note; that he had engaged as an attorney to assemble the assets of a business in which respondent and others were stockholders to pay the debts, and thereafter, if a surplus remained, to pay it to respondent and others to whom it belonged. There is testimony sufficient to sustain the finding of the jury that defendant bought stock in the company on his own account, that he engaged to pay the note sued on, and evidenced his promise by writing his name on the back of the note. This brings us to the legal questions raised by the assignments of error.
Appellant contends that the court erred in overruling a motion to compel respondent to separately state his causes of action. Granting, but without holding, that two causes of action are contained in the complaint, no prejudice resulted, because upon appellant’s motion respondent elected upon the trial to try his case upon the theory of novation. This is equivalent to a demurrer sustained to the other cause of action if it be a separate cause.
It is insisted that a novation cannot be sustained unless there was a release of Wetzel and his wife; that they cannot be released by an oral promise; that there can be no release under the statute unless it be by a writing or a surrender or a yielding up of the note. There being no such release in writing or a surrender of the note, there is no consideration
It is next contended that the respondent, having knowledge of the facts under which .appellant indorsed the note, is not a holder in due course and is subject to the defense that appellant was not to be bound by his indorsement unless he realized enough out of the dividends of the company to pay it. It is a sufficient answer to this contention to say that' the parties submitted testimony upon this issue and the jury found against appellant. Had appellant been denied the right to offer evidence to sustain his affirmative defenses, a question of law would have been raised for our determination.
It is also insisted that the promise of defendant as made'is an oral promise to pay the debt of another and cannot be enforced under the statute 'of frauds. While the indorsement of his name is probably sufficient to hold appellant in any event, we can come to no other .conclusion—-the jury having found against him upon the facts—than that his engagement is not a promise to pay the debt of another, but a promise to
An agreement to pay a purchase price to a third party for the benefit of a vendor is not a promise to pay the debt of another. It is a direct promise in law and may be sued On by the creditor of the vendor. Gilmore v. Skookum Box Factory, supra, citing other cases, Dimmick v. Collins, 24 Wash. 78, 63 Pac. 1101; Norby v. Winsor, 24 Wash. 535, 64 Pac. 726; Johnson v. Shuey, 40 Wash. 22, 82 Pac. 123; Gay v. Schaefer, 52 Wash. 269, 100 Pac. 334; Wells & Morris v. Brown, 67 Wash. 351, 121 Pac. 828, Ann. Cas. 1913 D. 317.
Finally, it is contended that the court refused to instruct the jury that the promise was oral and that the statute of limitations had run. The promise was not oral. The indorsement of his name by the appellant was an engagement in writing to pay the debt described in and evidenced by the note. Neither was it error for the court to instruct that a consideration was implied by the indorsement. Rem. & Bal. Code, § 3415 (P. C. 357 § 47). This assignment is not well taken for the further reason that, notwithstanding the instruction, a consideration was found by the jury to exist.
We have not overlooked the contention that appellant was prejudiced by the misconduct of counsel. It is true that counsel indulged in unnecessary and unwarranted comments, but we cannot think that a jury would be influenced by any of them unless it would be to the prejudice of the respondent. As a rule jurors are fair and are not moved by personal remarks or aspersions when indulged by counsel in the heat of a trial. Having some knowledge of.and confidence in human
“If a new trial were granted for every departure from the record committed on the firing line in hotly contested cases, such cases would never end. The zeal of counsel often leads them,, in the heat of debate, to make statements and to draw deductions not fully warranted by the record, and, except in cases of grave abuse of privilege, it must be presumed that the jury heeded the admonition of the court and determined the case upon the evidence.”
We find no error. Affirmed.
Morris, C. J., Mount, Holcomb, and Main, JJ., concur.