Beyers v. Moore, 32771

• Decision Date: 26 July 1954
• Docket Number: No. 32771,32771
• Court: Washington Supreme Court
• Parties: BEYERS, v. MOORE et al.

Page 68

45 Wn.2d 68

272 P.2d 626

BEYERS, v. MOORE et al.

No. 32771.

Supreme Court of Washington, Department 1.

July 26, 1954.

Ward V. Williams, Lynden, for appellant.

William A. Stiles, Jr., Sedro-Woolley, for respondents.

MALLERY, Justice.

This is an action on a promissory note executed by defendants Carl Moore and Alfred Eberli payable to the Meridian Tractor Company, in the amount of $1,785 with interest at eight per cent for the down payment on an International Crawler tractor.

Defendant Moore had arranged to log the timber on land belonging to one Ward. He needed a tractor for the operation. The plaintiff demonstrated an International Crawler tractor to him at his home near Deming, Washington. As Moore was unable to obtain the down payment for the purchase price of the tractor, plaintiff agreed to sell it without the down payment upon a conditional sales contract secured by a guaranteed promissory note. Defendant Moore approached Ward, who declined his request to sign such a note. Plaintiff's agent then took the promissory note in question, with defendant Moore's signature on it, to defendant Eberli, who signed it forthwith. The logging job for Ward failed to materialize, and defendant Moore used the tractor for occasional bulldozing work for about six weeks, after which he commenced a logging operation for one Sharon. In this operation, defendant Eberli assisted for approximately four days by using his farm tractor to load the logs, for which he was to receive eight dollars a thousand after the tractor was fully paid for. The tractor broke down, and, no payment having been made upon it, the plaintiff repossessed it and, after demand, brought this action on the promissory note against defendants Moore and Eberli and the Moore and Eberli communities.

The trial court granted judgment against Moore, the Moore community, and against Eberli individually, but dismissed the action against the Eberli community with costs. The plaintiff's appeal presents only a question of fact to this court.

Appellant contends the trial court erred in not granting judgment against the Eberli community. The trial court, in its memorandum opinion, said:

'The testimony was very confusing, contradictory and unsatisfactory as to whether or not an understanding or agreement was ever concluded between Mr. Moore and Mr. Eberli, and prior to the sales transaction, as to some working agreement between the defendants whereby the Eberli community could expect or contemplate a benefit as a result of the purchase of the 'cat."

The burden of proving that the promissory note was not a community obligation was upon the community. Marquette v. National Bank of Ellensburg, 132 Wash. 181, 231 P. 788; Spokane State Bank v. Tilton, 132 Wash. 641, 233 P. 15; and Peterson v. Zimmerman, 142 Wash. 385, 253 P. 642. Otherwise, there is a presumption that the community is liable, which can only be overcome by clear and convincing evidence. Auernheimer v. Gardner, 177 Wash. 158, 31 P.2d 515; Morrison v. Dungan, 182 Wash. 503, 47 P.2d 988; and Meng v. Security State Bank of Woodland, 16 Wash.2d 215, 133 P.2d 293.

If there was any expectation of benefit to the community from the tractor transaction at the time the note was signed by respondent Eberli, it was a community obligation. Spinning v....