72 Wash. 609 | Wash. | 1913
The question presented by this appeal is the negotiability of the following note:
“On the first of November, 1920, for value received, we promise to pay to M. L. Bevis the principal sum of $1,200 (Twelve Hundred Dollars), with interest thereon at the rate of seven per cent per year, from the date hereof until maturity, payable annually according to the tenor of nine interest notes, each for $84 and one (1) for $80.97, bearing even date herewith; both principal and interest notes payable at the office of Bevis Bros., Spokane, Wash, (with exchange on New York). And if default be made in payment of any of said notes so secured, or any part of them, as the same mature, for the space of thirty days, or if the maker of this note and interest notes attached hereto shall allow the taxes or any other public rates and assessments on the property, or any part thereof, given as security for the aforesaid notes to become delinquent, or in case any taxes or assessments shall be levied against the holder of this note on account of this note, or shall do any act whereby the value of said mortgaged property shall be impaired, then, upon the happening of any of said contingencies, the whole amount herein secured shall at once become due and payable, and the mortgagee, his legal representatives or assigns may proceed at once to collect this note and foreclose the mortgage given to secure said note and sell the mortgaged property, or so much thereof as shall be necessary to satisfy said debt, interests and costs and all taxes, public rates, or assessments that may be due thereon, together with a reasonable attorney’s fee, if suit be commenced for the purpose of collecting this debt or foreclosing the mortgage, securing said debt, and also said taxes, public rates, and assessments, and costs incurred by the mortgagee, his representatives or assigns, shall be secured by mortgage, and also in judgment in such foreclosure case. It is expressly agreed and declared that these notes are made and executed under and are in all re*611 spects to be construed by the laws of the state of Washington, and are secured by mortgage of even date herewith, duly recorded in Lincoln county of the state of Washington. This note bears interest at the rate of ten per cent per year, payable yearly after maturity. The makers of this note have the option of paying it any time the interest matures on and after November 1st, 1910. Dated at Spokane, state of Washington, on the 14th day of November, 1910.
“Jacob Quast, Jr.”
“Tena Quast.”
The sections of the negotiable instrument law controlling are § 3392, Rem. & Bal. Code, providing that an instrument to be negotiable “(4) must be payable to order or to bearer,” and § 3401, “The instrument need not follow the language of the act but any terms are sufficient which clearly indicate an- intention to conform to the requirements hereof.” The instrument clearly is not payable “to order or to bearer,” and must for this reason be held nonnegotiable, unless we can find in it some language that, under § 3401, “clearly indicates an intention” to make it so payable.
Appellant contends this language is supplied in the provision accelerating the time of payment on the happening of certain contingencies, and providing in such case “the mortgagee, his legal representatives or assigns, may proceed at once to collect,” and the subsequent provision as to payment of taxes and costs by “his representatives or assigns.” The mortgage also refers to “party of the second part, his successors or assigns.” The word “assigns” as used in the note and mortgage does not refer to the payee of the note, but to the mortgagee, and indicates nothing more than that the mortgage may be transferred by assignment. The transfer of an instrument by assignment is not the equivalent of its transfer by indorsement. As interpreting § 3392, the provisions of § 3401 clearly refer to words of indorsement and not to words of assignment, and mean that, in order to make the instrument conform to the requirement of § 3392, it is not necessary to use the words “order or bearer,” but other
Judgment affirmed.
Crow, C. J., Main, Fullerton, and Ellis, JJ., concur.