Bardsley v. Washington Mill Co.

• Decision Date: 26 August 1909
• Citation: 54 Wash. 553,103 P. 822
• Parties: BARDSLEY v. WASHINGTON MILL CO.
• Court: Washington Supreme Court

103 P. 822

54 Wash. 553

BARDSLEY v. WASHINGTON MILL CO.

Supreme Court of Washington

August 26, 1909

Department 2. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action by N.C. Bardsley against the Washington Mill Company. Judgment for plaintiff, and defendant appeals. Reversed, with instructions.

Danson & Williams, for appellant.

Belden & Losey, for respondent.

PARKER, J.

This is a suit upon a promissory note executed by the defendant December 21, 1904, and due December 21, 1909. The ground upon which the plaintiff contends that he is entitled to recover at this time is the alleged default in the payment of interest installments past due, giving him the right to declare the whole debt due. Upon a trial before the court findings and judgment were made and rendered favorable to the plaintiff, from which the defendant appeals to this court.

Exceptions were duly taken by appellant to certain of the court's findings, as well as the court's refusal to make others proposed by appellant. All of the evidence is brought here for our review of the case, and so far as the facts are concerned, which in our opinion determine the rights of the parties, they are practically undisputed, and may be summarized as follows:

The plaintiff is a resident of Spokane, and the defendant is a domestic corporation of the state of Washington with its place of business at Spokane, at all time since the making of the note sued upon which is in words and figures as follows:

'$5,000.00 Spokane, Wash., Dec. 21st, 1904.

'On or before Dec. 21, 1909, after date, without grace we promise to pay to the order of Maida T. Carson five thousand dollars in gold coin of the United States of America of the present standard value, with interest thereon in like gold coin at the rate of 10 per cent. per annum from date until paid, for value received. Interest to be paid monthly and if not so paid the whole sum of both principal and interest to become immediately due and collectible, at the option of the holder of this note. And in case suit or action is instituted to collect this note, or any portion thereof we promise and agree to pay, in addition to the costs and disbursements provided by statute, a reasonable sum of _____ dollars in like gold coin for attorney's fees in said suit or action.

'Due Dec. 21, 1909, at Spokane, Wash.

'Washington Mill Co.,

'Per W. H. Acuff, Pres.

'Per J. C. Barline, Treas.'

Some time after the making of the note it was purchased by E. H. Belden, a resident of Spokane, from the original payee, and by him put up as collateral with the Exchange National Bank of Coeur d'Alene, Idaho. Prior to this time the installments of interest had been paid from time to time at the office of the appellant; but thereafter upon notice from the bank, appellant made some payments of interest upon the note by remittance through the mail to the bank, the last of which remittances paid the interest up to December 15, 1907. No further payments being made, the note was transferred to the respondent for the purpose of instituting this suit, which soon thereafter was commenced on February 20, 1908. It is conceded, however, that E. H. Belden was and still is the real owner of the note. The evidence is not very satisfactory as to notice of or demand for payment of the interest installments falling due after December 15, 1907, and prior to the commencement of this action; but in any event such notice or demand at best consisted of nothing more than the sending to appellant of a notice or demand for payment of such interest through the mail by the bank while the note was in its possession at Coeur d'Alene. The appellant has at all times been ready and willing to pay the interest accruing since December 15, 1907, as it became due, at its place of business in Spokane. But the note has not been presented there at any time, nor was appellant given any opportunity to pay the interest there, prior to the bringing of this suit, though the respondent, and also Belden, the real owner of the note, at all times knew the location of the place of business of appellant at Spokane. In so far as these facts were not found by the trial court, they were requested to be found by appellant, and are established beyond controversy by the evidence.

It is unnecessary for us to point out the particulars in which we regard the court's findings and conclusions as...