9 Wash. 162 | Wash. | 1894
The opinion of the court was delivered by
— The complaint in this case alleges that on the 30th day of August, 1888, at the city of Olympia, Territory of Washington, the defendant, in consideration of the sum of one dollar, to Mm in hand paid by the plaintiff, did, in writing, guarantee the payment at maturity to plaintiff of any and all bills of merchandise which the plaintiff might from time to time thereafter sell to George L. Jones upon such credits as might be agreed upon between the plaintiff and the said Jones, and without requiring any demand or notice of default; that the defendant’s liability was by said writing limited to five hundred dollars; that plaintiff afterwards and prior to October 12,1891, and on the faith of said guaranty, sold and delivered to said George L. Jones merchandise, consisting of hardware to the full amount of five hundred dollars, the purchase price of which, according to the terms of sale, was payable on delivery of the goods; further alleges demand of payment of Jones, and refusal by him to pay the same, and demands judgment against the defendant on his guaranty for five hundred dollars, and costs of the action.
The answer, among other things, alleges that some time shortly prior to the 30th day of August, 1888, the agent of plaintiff called upon the appellant, representing that he had sold to said J ones a bill of merchandise of the value of five hundred dollars, and desired the appellant to guarantee
Upon the trial of the cause the appellant offered evidence tending to show the character of the first guaranty and the circumstances under which the second guaranty was executed. The testimony offered was as follows:
‘ ‘ That the guaranty sued upon in this action was substituted for the original guaranty given by him in which his liability was limited to five hundred dollars; that the guaranty upon which suit is brought was given by Mr. Frost under the following representation, by inclosing the same by letter:
*165 “ ‘Aug. 25th, 1888.
“ 'Robert Frost, Olympia, Wash. Ter.:
“ ‘Dear Sir — We are in receipt of an order from our Mr. Traphagen for stoves to be shipped to Geo. L. Jones of your place, and we are also in receipt of your guaranty for the account of Mr. Jones up to $500. We would much prefer that you make out this guaranty on one of our blanks, which we inclose herein for your signature. We will hold the guaranty which we received through Mr. Traphagen until we receive this from you, when we will return it to you. There is but little difference in the blanks, but we prefer to have our own regular forms for our account in order to make everything more satisfactory.
“‘Yours truly, Rathbone, Sard & Co., per — .’
“Further that the original guaranty for which the one sued on was given limited the liability of the defendant to the amount of five hundred dollars. Also that the original guaranty was never returned to defendant, but was lost or retained by the plaintiffs.”
This testimony was objected to by the plaintiff, the objection was sustained, and upon motion of the respondent the jury was instructed to find a verdict for the respondent.
In refusing to admit such testimony we think the court erred. The respondent objected to the introduction of the testimony on the ground that the affirmative allegations of the answer did not charge fraud on the part of respondent. While it is true the answer does not allege in terms that the respondent was guilty of fraud in obtaining the execuion of the second guaranty, yet if the facts which constitute the fraud are set forth it is not necessary that the appellant should plead the conclusion of law, which would be about all that an allegation stating in terms that the respondent was guilty of fraud would amount to. We think the allegations of the answer, and the proof offered in this instance, if true, are sufficient to establish fraud on the part of the respondent — at least it is sufficient proof tending to establish fraud to be allowed to go to the consideration of the jury. The testimony is that the second guaranty is a continuing guaranty, and that the first guaranty was limited to the goods which were already bought by Jones at the time the guaranty was executed. Cer
It is true it may have been a little careless on the part of Frost not to have examined the second instrument with reference to the conditions of the first; but it is upon careless people ordinarily that frauds are perpetrated. If it was not the intention of the respondent to obtain by the change a benefit which was not contained in the first agreement, then it has secured a contract which was not intended either by it or Frost, and if it was its intention to obtain this additional benefit, it evidently obtained it by sharp practice, and when sharp practice is analyzed fraud will usually be found to be its principal constituent element. We do not think the law should uphold men in their at
The answer also alleged that during the times mentioned and set forth in plaintiff’s complaint the plaintiff was a foreign corporation attempting to do business in the State of Washington without complying with the laws of this state with respect to foreign corporations doing business therein, and that therefore it had no legal capacity to sue; and a portion of appellant’s brief is devoted to the discussion of this proposition. This question was settled by this court adversely to the contention of appellant, to the effect that where a party had contracted with a foreign corpor
Scott, Anders and Stiles, JJ., concur.
Hoyt, J., dissents.