104 Wash. 539 | Wash. | 1918
In April, 1913, appellant J. L. Pickering’, who had theretofore been one of the stockholders of the Pickering Hardware Company, a corporation, acquired all of the capital stock of that corporation, for which purpose he borrowed $7,700 from respondent, and evidenced the debt by a note for that amount, signed by the corporation and by himself individually, and pledged as collateral security therefor 250 shares of the corporate stock. In February, 1916, respondent made a further loan of $2,500, evidenced by a note for that amount, also signed by the corporation and by Pickering, and as collateral security therefor, Pickering assigned to respondent a life insurance policy, a real estate contract covering the property occupied by him as a homestead, gave a hill of sale of an automobile, and deeds covering two pieces of real estate which belonged to the corporation. In February, 1917, the corporation was without funds to pay its obligations in the ordinary course of business, and after some unavailing negotiations looking toward the taking over of the business by the respondent and the settlement by him of the claims of other creditors, an assignment was made by the corporation and by Pickering to the Seattle Merchants’ Association. The assignment was in the usual form, except that it was therein provided:
“It is understood and agreed that all creditors shall accept the proceeds of this assignment in full settlement of their accounts, and their acceptance of benefits hereunder shall constitute a full release.”
And, also, the assignment purported to convey to the assignee all of the property of the assignors, excepting only the homestead here in controversy, and
“In consideration of the assignment of Pickering Hardware Company and J. L. Pickering of all their assets not exempt from execution to Seattle Merchants’ Association, a corporation, for the benefit of creditors, and in further consideration of our sharing in the proceeds of said assignment pro rata with the other creditors in the order of priority provided by law, the undersigned hereby grants to said J. L. Pickering a complete release from all indebtedness to the undersigned.
“Dated at Bellingham, Wash., this 21st day of March, 1917. Victor A. Boeder.”
These instruments appear to have been prepared and sent to respondent by the assignee, and to have been executed without reading or other examination, upon the supposition that they were purely formal. During all of this time, and until the sale of the merchandise assets to others some time later, it appears to have been understood between Pickering and respondent that, if the merchandise assets could he purchased from the assignee at a satisfactory price, re
Appellant contends that the assignment and release by respondent, being written instruments, • cannot be varied by parol testimony, and that the two construed together show an absolute discharge of the debt which the collateral was given to secure, and if the debt is discharged, the collateral is thereby released. Where a written contract is ambiguous or obscure in its meaning, the surrounding circumstances may always be inquired into for the purpose of ascertaining what was within the contemplation of the parties and what the contract is. Pennsylvania Mtg. Inv. Co. v. Simms, 16 Wash. 243, 47 Pac. 441. But, in any event, a receipt or release is held not to be a contract or evidence of a contract, and may be explained or contradicted by parol evidence. Allen v. Tacoma Mill Co., 18 Wash. 216, 51 Pac. 372.
The trial court, apparently having these principles in mind, received evidence of all the surrounding circumstances, and of various conversations and interviews, in which it is claimed appellant, after the as
But if it be argued that, in the preamble of the assignment, the intention to avoid the previously given collateral is to be inferred from the recital: “Whereas said assignors desire to pay each of their creditors equally and ratably and without the intervention of
Some contention is made that respondent, by receiving dividends upon the full amount of his claim before having exhausted his collateral, has thus been unlawfully preferred. But aside from the fact that respondent appears to have followed this course at the request of appellant, and that it was unquestionably an advantage to appellant that he do so, because thereby the claim against the collateral was reduced by $1,000, it also appears that the creditors, who alone might complain, were fully advised of respondent’s collateral before any dividend was paid; that respondent then surrendered the deeds covering the corporate real estate, which had also been pledged, and the creditors acquiesced in the situation and took no steps to protect their rights. The attempt to intervene, long after the case was tried in the court below, was not timely.
Finding no error, the judgment appealed from is affirmed.