City of Seattle v. L. H. Griffith Realty & Banking Co.

• Citation: 28 Wash. 605,68 P. 1036
• Court: Washington Supreme Court
• Decision Date: 12 May 1902
• Parties: CITY OF SEATTLE v. L. H. GRIFFITH REALTY & BANKING CO. et al.

68 P. 1036

28 Wash. 605

CITY OF SEATTLE v. L. H. GRIFFITH REALTY & BANKING CO. et al.

Supreme Court of Washington

May 12, 1902

Appeal from superior court, King county; O. Jacobs, Judge.

Action by the city of Seattle against the L. H. Griffith Realty &amp Banking Company and others. Judgment for defendants, and plaintiff appeals. Affirmed.

W. E Humphrey and Edward Von Tobel, for appellant.

William Martin, for respondents.

FULLERTON J.

The appellant, the city of Seattle, sued the respondent and others upon a promissory note. The respondent answered to the effect that he signed the note as surety upon the express understanding and agreement with his principal, of which the city had knowledge, that the same was not to be delivered to the city, or to become of force and effect until certain other persons named signed the same as sureties; that the other persons named failed or refused to sign the note, and that the note was delivered to the city in violation of the agreement, and accepted by it with full knowledge of the terms and conditions under which it was signed by him. A reply was filed, putting the allegations in the answer at issue, and a trial had before a jury, which resulted in a verdict and judgment for the respondent.

The appellant first assigns as error the ruling of the court permitting the respondent and the representative of the principal on the note, who presented the note to the respondent for his signature, to testify to the agreement set out in the answer. From the form in which the objection appears in the record, it is somewhat difficult to ascertain whether the objection went to the agreement as a defense to the action, or to the manner in which the respondent sought to prove the agreement; and we regret to say the appellant has not made the point any clearer in his brief. Considering the objection from either view, however, we do not find error in the ruling of the court. It was competent for the defendant to show in defense of the action against him upon the note that he signed it under an express agreement that it was not to be delivered or become obligatory until certain other persons had signed it, and that the payee received it with knowledge of this agreement, and without procuring such other persons to sign it. It was equally competent to show this agreement in the words of the parties making it. Merely because it entailed calling for the conversation between the...