Barker v. Sartori

• Decision Date: 16 December 1911
• Citation: 66 Wash. 260,119 P. 611
• Parties: BARKER v. SARTORI et al.
• Court: Washington Supreme Court

119 P. 611

66 Wash. 260

BARKER v. SARTORI et al.

Supreme Court of Washington

December 16, 1911

Department 1. Appeal from Superior Court, King County; J. T. Ronald Judge.

Action by Patrick Barker against R. Sartori and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Howard O. Durk and A. R. Rutherford, for appellant.

Chas F. Munday and Bausman & Kelleher, for respondents.

MOUNT J.

In the year 1910 the city of Seattle began proceedings to condemn certain lots for park purposes. Among these were lots 6 and 7, block 1, Columbia Terrace addition, and lot 7, block 24 of Squire's Lakeside addition. These lots were owned by Patrick Barker, who was made a party to the condemnation proceeding. Upon a trial of the condemnation case, Mr. Barker was awarded $2,200 for the lots in Columbia Terrace addition and $1,013 for the lots in Squire's Lakeside addition. After these awards were made and the money paid into court, R. Sartori, who claimed to hold a mortgage lien on lot 7, block 4, above stated, for $1,000 and interest, and the Seattle National Bank, which claimed to hold a mortgage on the other two lots for $2,200 and interest, were brought into the case upon petition of the city. These parties thereupon set up their mortgages, claiming to be purchasers of the notes secured thereby, before maturity, for value, and in good faith, and petitioned the court for the application of the funds to the payment of their respective mortgage liens. Patrick Barker answered these petitions, denying execution of the instruments, and alleging affirmatively that both were void for want of consideration. Upon issues thus made, the trial court was of the opinion that Barker executed the notes and mortgages which were liens upon the premises covered by the respective mortgages, and that the petitioners were holders in good faith, before maturity, and therefore entered orders, directing the application of the funds remaining after certain prior liens were paid to the satisfaction of the petitioners' claims. Mr. Barker has appealed from these orders. Both cases depend upon the same state of facts, and were tried as one.

Appellant argues that the notes and mortgages given for their security are void, because they were executed without consideration passing to Mr. Barker. It may be true that no consideration passed, but the court found, and the evidence is clearly sufficient to show, that Mr. Barker executed the notes and mortgages. It was not disputed that Mr. Sartori and the Seattle National Bank acquired the paper, for value, before maturity, without notice of any defect or want of consideration between the makers and the original payee. It is clear, therefore, that these respondents are holders in due course, provided the paper is negotiable. Gray v. Boyle, 55 Wash. 578, 104 P. 828, 133 Am. St. Rep. 1042. In that case the court quoted the rule in such cases from Vallett v. Parker, 6 Wend. (N. Y.) 615, as follows: 'Wherever the statutes declare notes void, they are, and must be so, in the hands of every holder; but, where they are adjudged by the court to be so for failure, or the illegality, of the consideration, they are void only in the hands of the original parties, or those who are chargeable with or have had notice of the consideration.' This is decisive of that question.

It is next argued that the paper was not negotiable. The notes contain similar provisions. One of them recites: 'Two years after date, without grace, for value received, I promise to pay to the order of H. P. Wolcott the sum of $1,000, with interest at the rate of 9 per cent. per annum from date until paid. Interest to be paid semi-annually, and if not so paid to bear interest after delinquency until paid at the rate of 9 per cent. per annum.' The notes were secured by mortgages, which contain stipulations requiring the maker to pay, in addition to the principal debt and interest, such sums as the mortgagee may be required to incur for insurance, taxes, assessments, and charges on the land etc. It is argued (1) that the provision in the notes renders them uncertain as to the amount to be paid at maturity, because if the interest is not paid at certain fixed periods such past-due interest bears interest; and (2) that the mortgages bearing the same date as the notes are assumed to have been made at the same time as the notes, and the two instruments must be construed as one contract, and therefore are entirely uncertain as to the amounts to be paid at maturity. Our statute, at section 3392, Rem. & Bal. Code, defines a negotiable instrument, and declares that it 'must contain an unconditional promise or order to pay a sum certain in money.' The next section provides: '§ 3393. The sum payable is a sum certain within the meaning of this act, although...