Bay View Brewing Co. v. Grubb

• Decision Date: 02 March 1901
• Citation: 24 Wash. 163,63 P. 1091
• Parties: BAY VIEW BREWING CO. v. GRUBB.
• Court: Washington Supreme Court

63 P. 1091

24 Wash. 163

BAY VIEW BREWING CO. v. GRUBB.

Supreme Court of Washington

March 2, 1901

Appeal from superior court, Clallam county; James G. McClinton Judge.

Action by Bay View Brewing Company against Peter Grubb. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Trumbull & Trumbull, for appellant.

DUNBAR J.

This is an action upon two promissory notes, each of said notes being made a separate cause of action. No error is alleged in relation to the first cause of action. In the second cause of action is alleged execution of the note to the appellant by John Nelson and Mary Nelson, whereby they promised to pay the sum of $474, with interest, etc. Then follows an allegation of transfer of the note by indorsement to respondent, and an allegation 'that at the time of the said indorsement by the defendant he waived demand and notice.' To this cause of action the appellant demurred, which demurrer was overruled, and the action of the court in overruling the demurrer is alleged as error.

It is the contention of the appellant that the allegation that the defendant waived demand and notice is not an allegation of fact, but simply a conclusion of law; that where no notice has been given, and the plaintiff relied upon facts excusing such notice or showing a waiver thereof, such facts must be specifically alleged by the plaintiff; and several cases are cited to sustain the contention. But we do not think the cases cited are in point. They rather go to the extent that the facts proved must correspond with the averments. There is but one way known to the law by which demand and notice can be waived, and the defendant cannot but be apprised of what he is called upon to defend by the allegation in this complaint. It is true that the law does not countenance the pleading of conclusions instead of alleging facts under the provisions of the Code, but when the fact embodies a conclusion, as it seems to us it does in this case, the provisions of the Code are not violated. It has always been held sufficient to allege, in a suit for the collection of money due on a note, that demand had been made and refused without setting forth the words which were used in making the demand or in the refusal to pay, and yet it might be said that in that instance both the allegations of the demand and refusal were the pleading of conclusions. We think the complaint was sufficient in that respect, and that the demurrer was properly overruled.

After the plaintiff had rested, and appellant was introduced as a witness in his own behalf, he testified that the words 'demand and notice waived,' were not in his handwriting. He was then asked by his counsel the following question: 'At the time you indorsed this note (Plaintiff's...