Bank of Montreal v. Guse

• Decision Date: 05 January 1909
• Citation: 98 P. 1127,51 Wash. 365
• Parties: BANK OF MONTREAL v. GUSE.
• Court: Washington Supreme Court

98 P. 1127

51 Wash. 365

BANK OF MONTREAL v. GUSE.

Supreme Court of Washington

January 5, 1909

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by the Bank of Montreal against Frank Guse. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

Bansman & Kelleher, for appellant.

John B. Hart and Robt. H. Evans, for respondent.

DUNBAR, J.

The case is before the court on the plaintiff's amended complaint and the defendant's demurrer thereto. The complaint, in substance, is to the effect that the defendant at Rossland, in the Province of British Columbia, Dominion of Canada, at different times ranging from January 23, 1899, to the 28th of March, 1900, executed notes to different parties in the aggregate sum of $4,302, which notes were assigned for value to the plaintiff; the different notes being pleaded as separate causes of action. To this complaint a demurrer was interposed; the first ground of the demurrer being that it appears upon the face of said cause of action and the allegations made and set forth therein that said cause of action is barred by the statute of limitations. It is conceded that the statute of limitations ran before the commencement of the action, and that the demurrer was properly sustained unless the bar of the statute had been removed by an acknowledgment of or promise to pay the debt. The court sustained the demurrer, and the plaintiff appealed relying upon the following correspondence between the parties to remove the bar:

'Rossland B. C., February 27, 1905. Frank Guse, Esq., Smith's Cove, North Seattle, Wash.--Dear Sir: I must ask you to remit something on account of your debt to the bank and to authorize us to draw on you for some definite amount monthly, otherwise we will be compelled to adopt some other means of collecting what is due. Yours truly, J. S. C. Fraser, Manager.'

'Seattle, Wash., Mar. 2, 1905, J. S. C. Fraser, Esq., Rossland, B. C.: I am in receipt of our letter of the 27th ulto. and contents noted. I hope you will be able to make a disposition of the St. Pauls and Belcher in the spring so we could have a settlement and I could use a little money myself. The property as you know is good and should sell for a fair price. Could you make me a cash offer for over and above of our differences on the St. Pauls and Belcher? I will send money for taxes to-morrow. Hoping to hear from you soon. Respectfully yours, Frank Guse. Station I, Seattle, Wash.'

'Seattle, Wash., Mar. 3, 1905, J. S. C. Fraser, Esq., Rossland, B. C.; Enclosed find money order for $6.90 which is my portion of the taxes on St. Pauls and Belcher, including stamp. I have been informed that Ralston is working for F. August Heinze in Montana. Respectfully yours, Frank Guse. Station I, Seattle, Wash.'

'Rossland, B. C., March 7, 1905. F. Guse, Esq., Smith's Cove, North Seattle, Wash.--Dear Sir: I have yours of the 2nd and 3rd inst. Can you not remit Ralston's share and collect from him? He is not with Heinze as I have inquired. I doubt very much the sale of 'St. Paul' and 'Belcher' this spring or during the year, but the indications all point to a revival of interest in this camp later on. No, I cannot make you an offer for your interest in the properties. Enclosed is a statement of your indebtedness on which I will make a rebate if you can arrange to pay now or give ample security. Yours truly, J. S. C. Fraser, Manager.'

'Rossland, B. C., 13th April, '05. Frank Guse, Smith's Cove, North Seattle, Wash.--Dear Sir: I must again remind you of your debt to the bank and ask for a remittance on account of it. I would regret having to take action, but cannot allow the matter to drift further. If you will send us say $25.00 monthly, we will withhold legal proceedings so long as you keep up your payments. Please reply by return. Yours truly, J. S. C. Fraser, Manager.'

'Seattle, Wash., April 22, 1905. J. S. C. Fraser, Esq., Rossland, B. C.--Dear Sir: I have looked over your statement carefully but have not discovered at any place where you have given me credit for the building which I bought at Columbia, B. C., and paid $650.00 for, with a rental income of $75.00 per month. This property I assigned to the Bank of Montreal, or J. S. C. Fraser, I forget which, also the Ralston note which was reduced from $300 to $250 in the year 1898. I wish you would explain matters more thoroughly. Hoping to hear from you soon. Also I wish you would interest parties in bringing about the sale of the St. Pauls and Belcher. This certainly is as good a property as there is in the country for the amount of work done. Respectfully yours, Frank Guse.'

'Rossland, B. C., 11th May, 1905. Frank Guse, Esq., Smith's Cove, North Seattle, Wash.--Dear Sir: Referring to your letter of the 22nd ulto., I enclose

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