31 Wash. 116 | Wash. | 1903
The opinion of the.court was delivered by
— This action was instituted by the respondents as a copartnership, against the appellant, a corporation. The amended complaint alleges that a certain copartnership, known as Mounce & Blue, for value received, made and delivered to the respondents a certain writing, of which the following is a copy:
“Aberdeen, Wash., October 3rd, 1901.
“Bor value received we hereby sell and assign to Uelson and Brecht five hundred and fifty-two 59-100 dollars of any money due or to become due us from Uelson Bennett Co. on account of our contract with them in the construction of railroad work. And we hereby request the said Uelson Bennett Co. to pay to Uelson and Brecht the said sum of $552.59 dollars out of any money due or to become due us on account aforesaid and to charge same to our account.”
It is further alleged that said writing was by respondents presented to appellant, and payment thereon demanded, hut that appellent refused to pay the same or any part thereof; that at the time of the execution of said writing, and at the time of making the demand aforesaid, the appellant was indebted to said Mounce & Blue
It is assigned that the court overruled the demurrer to the amended complaint, and also that the court erred in refusing to instruct the jury to return a verdict for the defendant. It is urged by appellant that the writing set forth in the complaint as the basis of the action is an order ■ or bill of exchange within the meaning of the act relating to negotiable instruments, as described in § 126, at page 362, of the session laws of Washington for 1899, and that no liability. of appellant could arise thereon unless the same had been accepted by appellant as provided by § 127 of the same act. Section 132 of the said act of 1899
It will be remembered, as above stated, that the pleader skillfully avoided any description of the contract mentioned in the complaint by which it could be determined from the face of the complaint whether the contract was oral or written, but it was alleged that, as a part of the contract for doing the work, appellant agreed to make payments upon the orders of Mounce & Blue. However, after the evidence was introduced at the trial, and at the time the request was made for an instruction that the jury should return a verdict for appellant, it had appeared that the contract between appellant and Mounce & Blue
It is assigned as error that a jury fee of $12 was taxed against appellant as part of the costs. Appellant’s counsel leaves this matter with the simple statement that such costs are unauthorized in law, and does not even cite the law
Lor the reasons stated, the judgment is reversed, and the
Fullerton, 0. J., and Mount, Dunbar and Anders, JJ., concur.