11 Wash. 541 | Wash. | 1895
The opinion of the court was delivered by
On the 30th day of January, 1892, the respondent was owner of a portion of the capital stock of a corporation known as the Haley-Glenn Company, doing business at Seattle, which he was at that time desirous of selling to the appellant, who, prior to that time, had no interest in the corporation; andón said day respondent delivered to the appellant the following guaranty:
“ To Joseph B. Hill, Esq., Seattle, Washington :
“Dear Sir—In consideration of your agreeing to become a purchaser of stock of the Haley Grocery Company, I undertake to hold you harmless against any loss which may accrue to you from any of the existing liabilities of the Haley-Glenn Company, and I guarantee that all the accounts assigned by the Haley-Glenn Company to the Haley Grocery Company can and will be collected. This guarantee and agreement to hold harmless shall be in proportion to the interest you may purchase in said Haley Grocery Company. Very truly, (signed) J. H. Glenn.”
For the purpose of effecting the sale, it was agreed that the same should be carried out through the medium of a new corporation to be known as the Haley Grocery Company, to be organized by respondent, ap
“ Interest to be paid quarterly, and if not so paid the whole sum of both principal and interest to become immediately due and collectible at the option of the holder of this note.”
Respondent delivered to appellant one hundred shares of said stock, and the remaining forty-five shares, together with said notes, were then deposited with one Graves, under the following agreement:
“Seattle, Washington, January 30,1892.
“E. O. Graves, Esq., Seattle, Wash. :
“Dear Sir: We deposit herewith the following papers:
“ 1st. Two notes of Joseph B. Hill for $2,515.35 each, one dated on or before one year after date, the other dated on or before two years after date.
“ 2d. Two notes of John Haley exactly similar to the preceding.
3d. Forty-five shares of the capital stock of the Haley Grocery Company originally issued to Ja°mes H. Glenn and by him indorsed to Joseph B. Hill.
“4th. Forty-five' similar shares indorsed by J. H. Glenn to John Haley.
“Messrs. Hill and Haley have purchased each the shares mentioned respectively and have paid J. H. Glenn in their respective notes. The shares are not to be delivered up to the purchasers until the notes are paid, nor are the notes to be removed or negotiated by the payee during the period which they run. On the payment of these notes, which can be done at any time before or after maturity, you will please deliver to the purchasers' respectively their shares, and each of the purchasers shall have a right to a separate release on the payment of his individual notes.
J. H. Glenn.
Joseph B. Hill.
John Haley.
“Witness: Fred BausmAn.
“ I assent to hold the aforesaid papers on said terms.
“ E. 0. Graves.”
Respondent brought this action for the purpose of recovering judgment upon said notes and foreclosing the lien claimed by him on the stock so deposited. Appellant denied the delivery of said notes, and by way of affirmative defense and offset, set up the .guaranty herein set out, that he relied upon the guaranty in making said purchase and in executing said notes. Also that, “relying on the guaranty, he [respondent] further purchased shares in the Haley Grocery Company and subsequently became the owner of all its capital stock.” He also alleges that of the accounts assigned by the Haley-Glenn Company to the Haley Grocery Company the amount of $3,216.94 was uncollected and uncollectible after the exercise of diligence, etc., and that°the various debtors owing said accounts were and are insolvent. Also, that certain assets purchased by the new company of the old corporation have not been delivered to the new company, the value
The respondent replied, denying the various allegations of new matter set up in appellant’s answer. The court below directed a reference for the purpose of determining what accounts assigned by the old corporation to the new remained uncollected and uncollectible. A great deal of testimony was taken by the referee, who thereafter reported to the court that accounts amounting with interest to the aggregate sum of $4,002.46 remained uncollected and uncollectible, and that appellant was entitled to be credited upon said notes in said sum. This report was modified in the lower court by reducing the amount to $3,134.46, of which amount the lower court held that the appellant was entitled to be credited upon said notes in the sum of $1,514.96 only, being twenty-nine-sixtieths of the .whole amount of accounts found uncollectible. The court refused to receive proof upon behalf of appellant in support of the other items of counter claim set up in the answer, and rendered judgment in favor of respondent in the sum of $4,388.88, said judgment being declared to be a lien upon the shares of stock so deposited, etc., and directing the sale thereof to satisfy said judgment. From said judgment this appeal is taken.
Assignments 1, 2 and 5 of appellant’s assignments of error relate to the delivery of the notes, and will be considered together. Appellant insists that the proof shows that the notes were delivered in escrow, and that plaintiff cannot maintain the action. Upon the trial it was shown that plaintiff never had possession of the notes, but that Graves, ■with whom they had been de
We do not think appellant’s position is well taken. The terms and conditions upon which the notes and certificate of stock were deposited with Graves were in writing. In his affirmative answer appellant expressly alleges that they were deposited in accordance with the terms and conditions of a written agreement, which he makes, a part of his answer. He does not assert or claim in his pleading that they were deposited pursuant to any other arrangement or upon any other terms or conditions than those expressed in said written statement. A delivery in escrow is a delivery to a “third party (not the payee), to hold until a certain event happens or certain conditions are complied with, and then the liability of the party commences as soon as the event happens or the conditions are fulfilled, without actual delivery by the depositary to the promisee.” Daniel on Negotiable Instruments, § 68.
“ The condition to make the instrument an escrow must be one to be performed by the grantee and not by the grantor.” White’s Admrs. v. Williams, 3 N. J. Eq. 376.
In determining what constitutes an escrow we must look to the language employed, the situation of the parties, the object to be attained, and such other facts as may throw light upon the intention of the parties. In his answer, appellant admits that the notes in suit were executed in payment of the shares of stock which he purchased from respondent. There was an absolute, sale of the stock, and appellant admits that these notes constituted the consideration paid therefor. The agreement recites, that “ Messrs. Hill and Haley have purchased each the shares mentioned respectively, and have paid Glenn in their respective notes. The shares, are
The lower court refused to allow the appellant to show that the Haley-Glenn Company had failed to deliver to the new corporation certain assets which he
The learned counsel for appellant insists that he is entitled to recover the same upon the written guaranty above set out, and that “ the word ‘ liabilities,’ as used in the guaranty, was the most general word that could he used and was supposed to include, as the parties intended it should, a liability that might arise by putting in a fictitious item among the gross assets.” We do not think that the language of the guaranty admits of any such construction.' All that respondent guaranteed was, first, against loss accruing to the appellant from any of the existing liabilities of the Haley-Glenn Company; and, second, that the accounts assigned by the old company to the new “can and will be collected.” The language employed is neither ambiguous nor uncertain. It will not admit of the meaning which is sought to be attached to it by the appellant, and we think the proof was properly excluded.
Upon the trial the appellant sought to show that there was a liability amounting to the sum of $360 for unpaid taxes, which did not appear in the schedule of the liabilities furnished to appellant at the time of accepting the guaranty in question and making the purchase, and that it was a loss to the appellant, from which the respondent in the written guaranty has covenanted to hold him harmless. Upon respondent’s objection the court excluded the proof. Conceding that this was a liability within the meaning of the guaranty, and was a claim against which the appellant, to the extent of the interest which he purchased from respondent in the new company, was entitled to be protected against, still he made no claim for the same in
Finally, appellant complains of the action of the court in modifying the report of the referee and reducing the amount of the credit allowed to the defendant upon said notes by reason of the uncollectibility of the accounts transferred by the old company to the new corporation. As already stated, the total number of shares of stock in the new corporation is three hundred. Of that amount, one hundred and forty-five shares were sold by the respondent to the appellant, and the guaranty of the respondent is, “to hold (appellant) harmless in proportion to the interest (which he) may purchase in said Haley Grocery Company.” Subsequent to the purchase of respondent’s stock, it appears that appellant became the purchaser from others of the remaining stock in the corporation. The referee reported that he was entitled to be credited with the entire amount of accounts found uncollectible. The lower court, however, credited him with twenty-nine sixtieths thereof, being that proportion of the whole sum which the shares of stock purchased by him from respondent bore to the entire stock of the corporation; and we think the court committed no error. It seems to us that in this particular the plain purpose of the guaranty was to protect the appellant merely to the extent of any interest in the corporation which he might purchase from the respondent. It was
Counsel for the respondent devotes considerable space in his brief to supposed errors of the court, committed to the prejudice of the respondent.' But, inasmuch as he has taken no appeal from the judgment, we are unable to notice them. “Without an appeal a party will not be heard in an appellate court to question the correctness of the decree of the trial court.” United States v. Blackfeather, 155 U. S. 180 (15 Sup. Ct. 64.)
The judgment will be affirmed.
Hoyt, C. J., and Anders, Dunbar and Scott, JJ., concur.