122 Wash. 106 | Wash. | 1922
— This action was brought by the Merchants Bank of Canada, doing business at Edmonton, Alberta, against the defendant Athabasca Fish Company, Limited, a corporation, for the purpose of recovering the balance due upon four promissory notes, and against the defendants E. A. Sims and John W. Pace on a guarantee bond by which they had guaranteed the payment of all moneys loaned or advanced to the fish company. The defendants Sims and Pace answered separately and each admitted the guarantee,
The findings of fact, as made by the trial court, may be summarized as follows: The Merchants Bank of Canada is a banking corporation, having a branch at the city of Edmonton, in Alberta. For some time prior to the 25th day of May, 1918, John W. Pace had been investigating the fishing business in the vicinity of Edmonton and had commenced the organization of the Athabasca Fish Company, with a capital stock of $25,000. In carrying on this investigation, Pace, in his individual capacity, had borrowed money from E. A. Sims and W. E. Persell, and had arranged to have a cannery outfit shipped to Edmonton. On the date mentioned, Pace was personally obligated for all advances made by Sims and Persell. Both Sims and Persell were experienced in the fishing and canning business in "Washington and, to some extent, in Canada. During the latter part of May, 1918, they went to Edmonton to investigate the business there and determine whether they desired to become interested with Pace. On the morning of the 25th of that month, Pace, Sims and Persell went to the Merchants Bank of Canada, at Edmonton, and there met the manager of the bank, Frank Pike, and the assistant manager,
Immediately after this conference, the organization of the fish company was completed. Sims and Persell each subscribed for $9,000 worth of stock in the company and advanced in cash to it the sum of $5,000, which, on the following day, was deposited in the bank. The organization of the company having been completed, Sims and Persell returned to Seattle without attempting to make banking arrangements with any other bank, relying on the agreement which they claim the Merchants Bank of Canada had made to extend the credit-of $25,000. Subsequently, the officers of the bank refused to make any advances without a guarantee signed by Sims and Pace, and as a result, on the 6th day of July, 1918, the guarantee was signed upon
In November of that year the company sought a» further advance of $6,000 to cover its approaching winter operations. This advancement was refused; the company was unable to obtain money elsewhere and it was compelled to cease operations and was forced into liquidation. Thereafter an action was brought in Canada against the corporation, and judgment was obtained. After the company’s property had been sold and the portion of the proceeds which went to the bank was applied upon the indebtedness, there still remained due, as above stated, approximately the sum of $10,000. This is briefly the story of the case as it is told in the findings of the trial court. A more detailed reference to the facts as they pertain to particular questions will be made in connection with the consideration of the question to which they may be germane.
The first question to be determined is one of fact, and that is, whether the officers of the bank, at the conference on May 25th, agreed to extend a credit to the fish company to the extent of $25,000, if such sum be needed by that company, without the written guarantee. Upon this question the evidence is diametrically and unequivocally contradictory. The two officers of the bank who were present testified positively that there was no agreement to extend a credit without the guarantee. On the other hand, Pace, Sims and Persell testify that there was such an agreement. The trial court, upon this conflicting testimony, found the fact
The appellant argues that the finding of the trial court is not sustained by the weight of the evidence. It is contended that the circumstances surrounding the dealings of the parties and their subsequent actions lead to the conclusion that the finding of the trial court cannot be sustained. The conduct of the officers of the bank subsequent to the 25th, when it is claimed that the agreement to extend a credit without the guarantee was made, was consistent at all times with their present position that no such an agreement was made. They declined, when application was made, to make advances, and when the money was advanced to the company, it was done on terms which were consistent with the position taken by the manager of the bank at the meeting. On the other hand, the conduct, especially of Sims and Persell, was consistent with the contention that the agreement was, in fact, made to extend credit without the guarantee being executed. Immediately after the conference, they subscribed for stock, advanced money, and returned to the state of Washington. They were experienced in the fishing business and it was apparent that, if the company did not have credit, it could not proceed far with the undertaking. They hardly, under the circumstances, ivould have become interested in the company and returned to the state of Washington Avithout belieifing that they had arranged for a credit, knowing, as they must have knoAvn, that, Avithout such credit, failure of the business was inevitable. Without reviewing the evidence upon this question more in detail, it may be
It is next contended that, even if such an agreement was made as the respondents claim, then it is void, because (a) the minds of the parties never met; (b) it was too indefinite and uncertain to be enforcible; and (c) it lacked mutuality. Whether the minds of the contracting parties met is a question of fact. If the agreement was as contended for by the respondents, then the minds of the parties did meet upon the essential terms of the contract. The trial court found, as above stated, in accordance with this position, and we have reached the same conclusion.
Upon the question of uncertainty or indefiniteness, it will be admitted, as contended by the appellant, that a contract to be enforcible must be reasonably certain as to its terms and duration. The fact that an agreement does not fix a definite time when money should be returned, advanced or repaid would not make the contract fatally defective for uncertainty or indefiniteness. The general rule is that, where a thing is to be done and no time is fixed, it will be presumed that a reasonable time was intended. Wheeler v. Pitwood, 104 Wash. 1, 175 Pac. 289; Smith Sand & Gravel Co. v. Corbin, 81 Wash. 494, 142 Pac. 1163. Whether this rule applies to the payment or advancement of money, it is not necessary here to determine. In such-a case, some authorities hold that the money is to be repaid upon demand, while others hold that it is to be repaid within a reasonable time. The result would be the same in this case whichever rule be applied. The fact that the contract did not fix the time nor the amount which should be advanced from time to time, but only fixed the total beyond which the
“Parties are at liberty to refer to and adopt any lawful usage as a part of their contract; and where the language of a contract stipulates for performance according to a specified usage, the Courts will enforce the contract in accordance with the usage so incorporated.”
Whether the contract was void for lack of mutuality depends upon whether there was any consideration for the oral promise of the officers of the bank to make the advancement. There was such consideration. The business of the company was to he transacted with the appellant hank, and not with any other hank, and in addition to this, in reliance upon the agreement, the respondents Sims and Persell subscribed for stock
“It is said by Parsons the rule is perfectly well settled ‘that, if a benefit accrues to him who makes the promise, or if any loss or disadvantage accrues to him to whom it is made, and accrues at the request or on the motion of the promisor, although without benefit to the promisor, in either case the consideration is sufficient to sustain assumpsit.’ 1 Pars. Cont. 451. See Blake v. Blake, 7 Iowa 46; Handrahan v. O’Regan, 45 Iowa 298. Courts ‘will not ask whether the thing that forms the consideration does, in fact, benefit the promisee or a third party, or is of any substantial value to any one. It is enough that something is promised, done, foreborne, or suffered by the party to whom the promise is made, as consideration for the promise made to him.’ ”
The contract was not void for any of the reasons alleged.
Lastly, it is contended that the agreement to advance money, which the respondents contend was made when the parties met and discussed the matter, is no defense to the action upon the written guarantee which was subsequently signed. The guarantee recites that “the undersigned (Sims, Pace and Watson) in considera
Tbe judgment will be affirmed.
.Parker, C. J., Holcomb, Mackintosh, and Hovey, JJ., concur.