No. 2895 | Wash. | Sep 23, 1898
The opinion of the court was delivered by
This action was brought against the defendants, husband and wife, to recover upon a promissory note executed by the defendant BE. E. Holmes to the Seattle Savings Bank, alleged to have been given in payment of thirty shares of the capital stock of said bank. Several affirmative defenses were pleaded, to which the plaintiff demurred. The demurrers were sustained, and, the defendants electing to stand on their answer, judgment was rendered for the plaintiff, and this appeal was taken.
The first defense pleaded will be passed, as it is, in effect, included in the second. It is alleged, in substance, that there was a want of consideration for the execution of the note; and, furthermore, that at the time of its execution the bank, then being engaged in business, represented to defendant H. E. Holmes that it had come into possession of a number of shares, including the shares in ■question, of its own capital stock; that it was contrary to law for it to hold said stock, and it was necessary that the same should be formally issued, and desired said defendant to take said thirty shares of stock temporarily, and give his note to the bank therefor at par value, until said stock could be sold to and paid for by actual purchasers; and that thereupon said defendant, as an accommqdation to said bank, executed and delivered the note in question, ,and took the stock accordingly.
The character of the receivership does not appear in the pleadings. It is not alleged in the complaint that the bank was insolvent nor that it owed any debts, and the
Tinder § 326, 2 Hill’s Code (Bal. Code, § 5456), a receiver may be appointed for other purposes than for the ■winding up of an insolvent concern, and there can be no presumption that it was insolvent. Therefore, as between the bank and the defendants, a complete defense to the action was alleged in the foregoing.
The third affirmative defense alleges, in substance, that no assessment had ever been made against the defendants, or the capital stock, etc. We view this as immaterial at this time, in consequence of its not appearing that the bank was insolvent or indebted.
In the fourth defense it was alleged that the note was executed and delivered solely as an accommodation to the bank, and was not executed for the benefit of the community existing between defendants as husband and wife or on behalf of the community, and this constituted a good defense as against the community; it not appearing that the defendants, or either of them, were in any wise interested in the bank at or prior to that time. It follows that the judgment must be reversed, and the case remanded for further proceedings.
Andees, Beavis and G-obdow, JJ., concur.