Bay View Brewing Co. v. Grubb

• Decision Date: 10 February 1903
• Citation: 71 P. 553,31 Wash. 34
• Court: Washington Supreme Court
• Parties: BAY VIEW BREWING CO. v. GRUBB.

71 P. 553

31 Wash. 34

BAY VIEW BREWING CO. v. GRUBB.

Supreme Court of Washington

February 10, 1903

Appeal from superior court, Clallam county; O. V. Linn, Judge.

Action by the Bay View Brewing Company against Peter Grubb. Judgment for plaintiff. Defendant appeals. Affirmed.

Trumbull & Trumbull, for appellant.

Preston & Embree, for respondent.

MOUNT J.

This was an action brought upon two promissory notes. One of these notes was executed and delivered by defendant to Hemrich & Co., a partnership consisting of Andrew Hemrich John Hemrich, and Fred Kirschner, and by the partnership transferred to the plaintiff. The other note was executed and delivered by John Nelson and Mary Nelson, his wife, to defendant, and by him indorsed to the partnership above named, which in turn transferred it to the plaintiff. At the time the action was begun, John Hemrich and Fred Kirschner two of the partners above named, were dead, and Andrew Hemrich, the surviving member of the partnership above named was president of the plaintiff corporation. The cause was before this court upon a former appeal. 24 Wash. 163, 63 P. 1091. Prior to that appeal no defense whatever was made to the first cause of action, being the cause of action upon the note first above described. When the cause was sent back for a new trial, the defendant asked leave of the court to withdraw his answer to the second cause of action and file a demurrer to the first cause of action. This leave was granted, and defendant thereupon filed a demurrer to the first cause of action upon the grounds: (1) That it was barred by the statute of limitations, and (2) that it did not state facts sufficient to constitute a cause of action. The second ground of demurrer was not, and is not now, insisted upon. The demurrer was overruled, and defendant answered to the second cause only. This answer consisted of a denial of all the allegations of the second cause, and affirmative matter, which affirmative matter was, on motion of the plaintiff, stricken out. Upon a trial judgment was rendered for the plaintiff for the full amount prayed, and defendant appeals.

Several errors are alleged. We think but two of them require notice.

1. It appeared on the face of the complaint that the first cause of action was barred by the statute of limitations, because the complaint was not filed within six years from the time the cause of action accrued. Cresswell v. Spokane County (decided Jan. 5, 1903) 71 P. 195. Respondent insists that appellant, under the statute, waived this ground of demurrer, and cannot urge such error at this late day. This contention must be sustained. The statute (2 Ballinger's Ann. Codes & St.) provides as follows:

'Sec. 4907. The defendant may demur to the complaint when it shall appear upon the face thereof either,--* * * (7) That the action has not been commenced within the time limited by law.'

'Sec. 4909. When any of the matters enumerated in section 4907 do not appear upon the face of the complaint, the objection may be taken by answer.'

'Sec. 4911. If no objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting always the objection that the court has no jurisdiction, or that the complaint does not state facts sufficient to constitute a cause of action, which objection can be made at any stage of the proceedings, either in the superior or supreme court.'

The objection that the action had not been commenced within the time limited by law clearly appeared upon the face of the complaint. When the defendant appeared in the case, no objection was taken to the first cause of action by either demurrer or answer. It was confessed thereby the plaintiff was entitled to judgment, and judgment was entered. The cause thereafter came to this court upon errors assigned in the trial of the second cause of action. No objection was taken to the first cause. If the statutes above cited are to be given any force whatever, certainly the defendant waived the objection which he now tries to make; and, if the court had any discretion to allow the answer to be withdrawn and the demurrer filed on the ground that the action was barred by the statute of limitations, it was an abuse of that discretion to permit the demurrer to be filed upon that ground after trial and judgment, and after the cause had been appealed to this court upon other questions.

2. On the trial the plaintiff offered in evidence the note with the indorsement described in the second cause of action, and, after he had identified the signature of the defendant to the indorsement, it was received in evidence. The indorsement on the not was as follows: 'Demand and notice waived. Peter Grubb.' When defendant was on the stand, he admitted his signature to the indorsement, and was asked this question: 'At the time you first put your name on the back of the note, were the words, 'Demand and notice waived,' there?' This question was objected to upon the ground that the member of the partnership, Fred Kirschner, with whom Mr. Grubb had the transaction, was dead, that the surviving member had no personal knowledge of the transaction at all, and that the defendant cannot now be heard to say that the words were not on the note at the time he signed it. This objection was sustained. The statute under which the objections were made is as follows: 'Sec.

5991. No person offered as a witness shall be excluded from giving evidence by reason of his interest in the event of the action, as a party thereto or otherwise; but such interest may be shown to affect his credibility: provided, however that in an action or proceeding where the adverse party sues or defends as executor, administrator or legal representative of any deceased person, or as deriving right or title by, through, or from any deceased person, or as the guardian or conservator of the estate of any insane person, or of any minor under the age of fourteen years, then a party in interest or to the record shall not be admitted to testify in his own behalf as to any transaction had by him with or any statement made to him by any such deceased or insane person, or by any such minor under the age of fourteen years: provided further, that this exclusion shall not apply to parties of record who sue or defend in a representative or fiduciary capacity, and have no other or further interest in the action.' There can be no doubt that, if this note had been indorsed to an individual, and that individual had transferred the note to the plaintiff, in the event of the death of the individual, the defendant could not be heard to testify in his own behalf as to any transaction had by him with, or any statement made to him by, such deceased person. It is admitted by the defendant that he indorsed the note. The act of indorsement was as much a transaction with the deceased person as the signing of a note could be. It certainly could not be held that, where the maker of a note is sued, and the executor or administrator of the payee sues as deriving right by or through a deceased person where the signature is confessed, the maker can be heard to testify after the death of the payee that the note had been altered or changed after execution and delivery, without his consent. The presumption is that all transactions are honest, and that when a paper writing is executed it remains the same. The burden is upon one alleging the contrary to prove it. If a person may be heard to say that a note signed and delivered to another since deceased has been changed or altered, he may also be heard to testify to a transaction had by him solely with the deceased person, who, if alive, would be the only person who could contradict such testimony. The object of the statute clearly was that, where one of the parties to a transaction or contract is dead, the mouth of the other is closed concerning that transaction. If the defendant may be heard to say that the words 'Demand and notice waived' were not on the note when he indorsed it, he may be heard to say that the note itself has been changed, or that it is not the note he intended to indorse, or he may be heard to contradict or vary the note in any other particular. If the words of waiver were not upon the note when the note was indorsed and delivered, but were subsequently placed there without the consent of the defendant, then the act of placing the words over the signature of the defendant was not a transaction by the defendant with the deceased person. But when it is admitted that there was a...