Baldwin v. Daly

• Decision Date: 10 January 1906
• Citation: 83 P. 724,41 Wash. 416
• Parties: BALDWIN v. DALY et al.
• Court: Washington Supreme Court

83 P. 724

41 Wash. 416

BALDWIN v. DALY et al.

Supreme Court of Washington

January 10, 1906

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by A. L. Baldwin against George A. Daly and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Reaves, Thorp & Wheeler, for appellants.

Sauter & Sheldon, for respondent.

FULLERTON J.

This action was brought in April, 1904, by the respondent against the appellants to recover upon a promissory note for $724.95 dated February 19, 1903, and due 12 months after date. In his complaint the respondent set forth the note in words, showing its execution as principals by both of the appellants alleged that a payment of $84.95 had been paid thereon prior to its maturity, and that the balance was overdue, and demanded judgment for such balance. The appellants answered separately. The appellant Daly answered to the effect that prior to the maturity of the note the respondent and appellants entered into an agreement by which the respondent for a valuable consideration, extended the time of the payment of the note until June 1, 1904, and that the action was prematurely brought. The appellant Peter set up the same defense, and the further defense that the respondent had released him from his obligation to pay the note. He alleged that this note, with three certain other notes, had been given as part of the purchase price of a sawmill sold by the respondent to the appellant Daly and one Furr; that he had no interest in the purchase of the mill, but signed the same as an accommodation maker for Daly and Furr, all of which the respondent well knew; that, when the first of the notes given as the purchase price of the sawmill matured, it was paid by Daly and Furr, but, when the second and third of the notes matured, neither Daly nor Furr was able to pay the same, and the respondent called upon him for payment; that he absolutely refused to pay the notes until the respondent should foreclose a chattel mortgage given by Daly and Furr to secure their payment and obtain all he could from the sale of such property, and that the matter was then taken up by all of the parties and an agreement entered into by the terms of which the respondent agreed, in consideration of the sum of $1,400, which would pay the second and third notes, then due, in full, and the interest and $84.95 on the principal of the fourth note (the one here in suit), to give to the appellant Daly until June 1, 1904, to pay the balance owing on fourth note, and to release the answering appellant entirely from any further liability thereon, and to look solely to the chattel mortgage and appellant Daly for payment of the same. It is then alleged that in consideration thereof, and for the sole purpose of being released from the further payment of the note sued on, he did pay the respondent the sum of $1,400, which sum was applied by the respondent in the manner agreed upon between the parties. A reply was filed denying the affirmative allegations of the answers. At the trial, which was had before the court without a jury, the appellant Peter offered oral evidence tending toi show that he was only surety upon the note sued upon, and that he was released from his liability thereon as alleged in his answer. This evidence the court rejected, holding that oral evidence was not competent to prove either that the appellant was only surety on the note or that he had been released from liability thereon. The trial then proceeded on the issue...