54 Wash. 506 | Wash. | 1909
Action by J. N. Otto against E. I. Griffin, Laura W. Griffin, his wife, and F. M. Blake, for goods sold and delivered. The plaintiff alleged that the defendants E. I.
The sole question presented is whether the action was prematurely commenced. The complaint is on open accounts, making no mention of the notes, or any alleged fraudulent acts of the respondents. It is conceded that the original indebtedness was the sole consideration for the notes, and that
“Although a note given by a debtor to his creditor does not operate as a payment of the precedent indebtedness, it will generally have the effect of suspending all right of action against the debtor on such precedent indebtedness until the maturity of the note.” 22 Am. & Eng. Ency. Law (2d ed.), p. 566.
In Lane & Bodley Co. v. Jones, supra, the supreme court of Alabama said:
“Generally, the acceptance of the note of a debtor is not, prima facie, payment of an antecedent debt. To operate an extinguishment of the original indebtedness, the note must, by agreement of the parties, express or implied, be received*509 in payment. A contractor may accept, in consideration of the materials furnished, the note of the owner or proprietor of the land, as a convenient mode of liquidating the account, without waiving the lien. The original indebtedness is not thereby extinguished, but the right of action is suspended vmtil the maturity of the note. After maturity, the note being unpaid, he may bring suit on the original indebtedness, and surrender the note.”
In Happy v. Mosher, supra, the commission of appeals of New York, in discussing a note so given and in addressing itself to this question, said:
“It did not operate as payment of the debt for which it was given, ... it extended the time of payment of the debt until the note matured. Such is always the effect of a note upon time for an antecedent debt, and here there is no proof even that the parties agreed or understood that it should not have this effect. The plaintiff could not take and hold this note, and secretly, in his own mind, intend that it. should have no effect. Until this note matured, therefore, the plaintiff could not sue Caler for the debt, and he could not institute the proceedings before the county judge to enforce its collection. . . . The proceeding before the county judge was, therefore, prematurely instituted, and the plaintiff should have been nonsuited. There was nothing in reference to this question to be submitted to the jury.”
Appellant seems to base some contention on the alleged ’fraudulent acts of respondents E. I. Griffin and Laura W. Griffin, set forth in the reply. Such acts might have entitled him to an attachment under Bal. Code, § 5352 (P. C. § 512), prior to the maturity of the debt, provided he had filed a proper complaint to support the same, in which he should have alleged that the debt was not due, that nothing but time was wanting to fix an absolute indebtedness, and that one or more of the four grounds for attachment mentioned in § 5352 existed. The appellant did sue out an attachment, but the record shows that it was obtained on an indebtedness past due, under the provisions of Bal. Code, § 5351 (P. C. § 511), and not under § 5352, supra, for a debt not due. This action
The judgment is affirmed.