16 Wash. 585 | Wash. | 1897
The opinion of the court was delivered by
This was an action brought by respondent against the appellant and other defendants upon a promissory note. Service was had only upon R. W. Emmons, the case being dismissed as to H. H. Emmons; issues were formed and trial had as to R. W. Emmons and verdict rendered in favor of respondent; judgment followed, from which judgment an appeal is taken. The admitted facts are about as follows: In November 1894, the Commercial National Bank of Seattle held two promissory notes, one signed by R. W. Emmons (the appellant herein) and the
B,. W. Emmons, answering separately, denied in substance the main allegation of the complaint and set up a set-off or counterclaim against the Seattle National Bank, but, under the testimony, it will not be necessary to mention this set-off or counterclaim, as the appellant, according to his own testimony, had no legal right to it in this action. During the course of proceedings the action was dismissed as to H. H. Emmons. At the close of the testimony the jury were instructed to bring in a verdict for the plaintiff, which they did, and upon which verdict the judgment before mentioned was based. The appellant’s contention here is that the complaint is inconsistent with itself, that inasmuch as it is alleged that the note was not made until April, 1895, it is self-evident that it could not have' been assigned by the Commercial National Bank to respondent in November, 1894, that the proofs in the case do not constitute an assignment, and that they are inconsistent with the allegations of the complaint. The first point is, that the suit, having been upon an assigned note the only way to prove title in the respondent was by an indorsement or written assignment. We have examined the cases cited by appellant to sustain this claim, but do not
“A chose in action may be assigned by parol as well as by writing, and, where there is no written assign*589 menfc, it is a question of fact whether there was a transfer.”
Citing many cases to sustain the doctrine, and the court in that connection says:
“ The books are full of cases upholding transfers, to effectuate the intention of the parties, whenever it could be done without contravening some statute or ground of public policy. Where there is no written transfer, the question whether there has been, in fact, such an appropriation as to effect a transfer, is one of fact for the jury.”
To the same effect are Hoffman v. Smith, (Iowa) 63 N. W. 182; Moore v. Lowrey, 25 Iowa, 336 (95 Am. Dec. 790); and in fact this question was clearly passed upon by this court in the case of Yakima National Bank v. Knipe, 6 Wash. 351 (33 Pac. 835), where we held that
“ The note, when introduced in evidence by the plaintiff, with what purported to be an indorsement in blank thereon, prima facie established the fact that the plaintiff was the owner and holder thereof.”
Again, it seems to us that this is a question which, outside of any right of set-off or counterclaim which the appellant may have, cannot be raised by the maker of the note. These are questions that are more interesting to the assignor and the assignee. Especially would appellant not be allowed to interpose an objection under the testimony in this case, where, knowing the circumstances, he voluntarily gave this note for the benefit of the Seattle National Bank to the Commercial National Bank and received a consideration therefor, namely, the former notes. It is in testimony that the note was made formally payable to the Commercial National Bank simply as a matter of convenience in keeping the accounts between the two banks, and so far as the sufficiency of the complaint is con
The judgment will be affirmed.
Scott, C. J., and Anders, Reavis and Gordon, JJ., concur.