85 Wash. 571 | Wash. | 1915
The purpose of this action was to- recover upon two promissory notes. The complaint alleges as a first cause of action, in substance, that the defendants L. A. Ford and Anna Ford, his wife, on July 15, 1910, for value received, made, executed, and delivered to the defendant E. J. Rice, a promissory note for the principal sum of $300, bearing
The allegations contained in the second cause of action are the same as those of the first cause of action, except the note sued upon is for the principal sum of $500.
The defendants Ford and wife answered the complaint by denials and by setting up an affirmative defense. To this answer, a general demurrer was interposed and sustained. They thereupon filed an amended answer, denying each and every allegation contained in both causes of action, except as admitted, qualified or explained in the affirmative defenses of the answer. The same affirmative defense was interposed to each cause of action in the complaint, and in substance alleged: That shortly prior to July 15, 1910, the plaintiff introduced the defendant E. J. Rice to Ford and wife, stating that Rice had a business proposition which he desired to take up with them; that Anna D. Ford had been well acquainted with the plaintiff for nearly twenty-five years, and had implicit confidence in his integrity and honesty, and by reason thereof relied upon each and every representation and statement made by him, and entertained the business proposition, which resulted in the execution and delivery of the notes in question; that shortly after his introduction, Rice, in explanation of the business proposition referred to, stated to Mr. and Mrs. Ford that he was a stock salesman connected with a corporation known as the “Jexite Powder Company;” that he was well and intimately acquainted with its affairs; that at that time its stock was selling in the open market
To these affirmative defenses, the plaintiff interposed a general demurrer, which was sustained. The cause thereafter
The principal question in the case is whether the facts stated in the affirmative defense charge fraud, and that the plaintiff was not a holder in due course. We think, if the facts stated are true, it necessarily follows that the execution and delivery of the notes were induced by fraudulent representations, and that the plaintiff is not a holder in due course. The rules governing the essential elements of actionable fraud are so well settled as to make unnecessary a review of them. The sustaining of the demurrer by the superior court was prejudicial error. Whether the transaction was a fraudulent one, and whether the plaintiff was a holder in due course, were questions which should have been determined upon a trial of the issues of fact. The respondent has neither made appearance in this court nor filed a brief, evidently realizing that the ruling upon the demurrer could not be sustained.
The appellants claim that their answer contains a plea of conditional delivery of the notes. It is true that it is competent for the maker of a note to show by parol that the note was to become a binding agreement only upon the happening of a certain contingency, and that such contingency has not happened. Ewell v. Turney, 39 Wash. 615, 81 Pac. 1047; Seattle National Bank v. Becker, 74 Wash. 431, 133 Pac. 613. But the pleading in this case does not bring it within the rule. The answer alleges:
“That it was distinctly understood and agreed by and between these defendants and the said Rice that the said note was to be used by said Rice for the purpose of raising the
This allegation negatives the idea of a conditional delivery. On this question the facts alleged, if true, show an oral agreement made prior to the execution and delivery of the notes, affecting the manner in which they were to be paid. Obviously, the written promise to pay cannot be modified or overcome by such an agreement, if one were made. There is nothing in the pleading to show a conditional delivery, and the oral agreement referred to cannot be interposed for the purpose of modifying or contradicting the written obligation.
The judgment will be reversed, and the cause remanded.
Morris, C. J., Ellis, Fullerton, and Crow, JJ., concur.