14 Wash. 129 | Wash. | 1896
The opinion of the court was delivered by
This action was brought by the respondent, as receiver of the Farmers’ Insurance Company, to recover upon three promissory notes made and executed by the appellants to said company, one of said
1. The first contention is that there was no consideration for the notes, which were given in part payment of subscriptions to the capital stock of said company, appellants insisting that certain of the subscriptions made to the capital stock of said company were fictitious, and not in good faith. The lower court found, however, that “all of said shares of said capital stock had been in good faith subscribed for by bona fide subscribers thereto before said corporation commenced business,” and an examination of the record satisfies us that the contracts of subscription to which the objection extends were legally enforceable, and that the finding of the court must be sustained.
2. It is next contended that the appellants never consented to a delivery of said notes to the insurance company. The answer of appellants, in effect, is that it was represented to them by the officers and agents of the insurance company, at the time of the signing of the notes, that all of the stockholders of said company should make and deliver to it their notes, respectively, for 15 per cent, of the amount of stock subscribed or held by them; that each of said notes should be signed also by a good and sufficient surety; that thereupon the defendants (appellants) signed the notes in suit, and placed the same in the hands of one W. H. Peter, an agent of the insurance company, to be delivered to defendant on condition that all of the stockholders of the company should make and deliver
3. Finalty, it is insisted that the court erred in overruling the appellants’ demurrer to the complaint in this action. The demurrer was a general one. Two objections are here urged in support of it, the first being that it is nowhere alleged in the complaint that the receiver is authorized to bring this action, or any action, in his own name; and, secondly, that as to the $250 note in suit, it is payable on demand at “the National Bank of Commerce,” and that the complaint contains no allegation of any demand for payment therein mentioned prior to the commencement of the action.'
As to the first of these objections, we think that the want of capacity-should appear from the allegations of the complaint. Phœnix Bank v. Donnell, 40 N. Y. 410; Land District v. Feck, 60 Cal. 403; Miller v. Luco, 80 Cal. 257 (22 Pac. 195.) But appellants insist that the receiver “cannot sue on any alleged cause of action existing in another' person or corporation. He must show a cause of action in himself.” There is much authority in support of the proposition that a receiver cannot bring an action in his own name; that he can
As to the second objection urged on demurrer, it is conceded by the learned counsel for appellants that as to notes payable at a specified place and time no demand is necessary, and “it is well settled, in this country, that in an action against the maker of a note, made payable at a particular place, it is not necessary to aver or prove a demand of payment at such place. If the maker was ready at the time and place to make payment, he may plead that fact, as he would plead a tender, in bar of damages and costs, by bringing the money into court. . . . Nor is a presentment necessary, on a bank note payable on demand at a particular place. The bringing of a suit is a sufficient demand of payment.” Bridge Co. v. Perry, 11 Ill. 467; McKenney v. Whipple, 21 Me. 98, and the authorities there collated.
The judgment is affirmed.