First Nat. Life Assur. Soc. of America v. Farquhar

• Decision Date: 09 October 1913
• Citation: 135 P. 619,75 Wash. 667
• Court: Washington Supreme Court
• Parties: FIRST NAT. LIFE ASSUR. SOCIETY OF AMERICA v. FARQUHAR et ux.

135 P. 619

75 Wash. 667

FIRST NAT. LIFE ASSUR. SOCIETY OF AMERICA v. FARQUHAR et ux.

Supreme Court of Washington

October 9, 1913

Department 2. Appeal from Superior Court, Pierce County; M. L. Clifford Judge.

Action by the First National Life Assurance Society of America against Frank S. Farquhar and wife. Judgment for the plaintiff, and defendants appeal. Affirmed.

The following is the stipulation entered into between the parties:

'In order to simplify the issues in this cause and lessen the expense of trial and of appeal, if an appeal is taken, it is hereby stipulated and agreed, by and between the plaintiff, represented by its counsel, Hudson, Holt &amp Harmon, and the defendants, represented by their counsel J. W. A. Nichols and Browder Brown, as follows:

'I. That paragraph VIII in the first cause of action and paragraph VIII in the second cause of action, may be considered as stricken from the complaint.

'II. That if the notes sued on are held to be a legal obligation they will then be due and enforceable against the community composed of Frank S. Farquhar and Minnie E. Farquhar, husband and wife, and also binding upon Frank S. Farquhar individually, according to the terms and conditions thereof.

'III. That the defendants elect to stand upon their affirmative defenses, alleged in their second amended answer, to which demurrer has been sustained by the court.

'IV. That the complaint, the second amended answer, the demurrer to the affirmative defense therein, the order sustaining the same and this stipulation shall constitute an agreed statement of facts upon which the case shall be tried.'

Browder D. Brown, of Tacoma, for appellants.

Hudson, Holt & Harmon, of Tacoma, for respondent.

MAIN, J.

The complaint in this case contains two causes of action separately stated. Each action is based upon a promissory note. In the first cause of action, aside from formal parts it is alleged that on the 23d day of October, 1909, the defendant Frank S. Farquhar made, executed, and delivered to T. D. Collis, as agent for the plaintiff, a promissory note in the sum of $368.90, the note being set out in extenso; that at the time the note was executed and delivered, T. D. Collis, named as payee therein, was the agent of the plaintiff; that the real payee was the First National Life Assurance Society of America, the plaintiff herein; that the plaintiff was the owner and holder of the note; that the note was given on behalf of the community composed of Frank S. Farquhar and Minnie E. Farquhar, his wife; that no part of the same has been paid, except that on May 24, 1910, interest amounting to $17.21 had been paid. The second cause of action is based upon a note for the sum of $850. The other allegations of this cause of action are substantially the same as those of the first. To these causes of action the defendants demurred, on the general ground that in neither of them were the facts sufficient to constitute a cause of action. These demurrers were overruled. Thereupon the defendants answered by admissions, denials, and affirmative defenses; the affirmative defenses, in substance being that the notes had been given to one Collis, the agent for the plaintiff, in payment for a policy of insurance and certain shares of stock in the plaintiff company, which shares were sold to the defendants at a special price as an inducement to take out the policy of insurance, and also that the plaintiff in the same transaction had given to the defendants its note for the sum of $100, to be used in part payment on the notes sued upon in the second cause of action, and that these several agreements were not contained in the policy of insurance. The plaintiff moved to strike a portion of the affirmative matter, and the motion was sustained. The defendants then filed an amended answer, in which an affirmative defense was pleaded. To the affirmative defense the plaintiff interposed a demurrer, which was sustained. The defendants then filed a second amended answer and affirmative defense, to which a demurrer was sustained. Thereupon, and on March 6, 1912, the parties by their respective counsel entered into a stipulation for the purpose, as it recites, of simplifying the issues and lessening the expense of the trial, and of an appeal, if an appeal should be taken. The plaintiff then made a motion for judgment upon the pleadings and the stipulation, and noted the same for argument on the 9th day of March, 1912. At the conclusion of the argument, the cause was not decided, for the reason that counsel for the respective parties were to submit written briefs. On March 23, 1912, and before anything further had been done in the cause, the plaintiff filed a motion, supported by affidavits, for leave to withdraw the demurrer which had been sustained to the affirmative defense in the second amended answer, the order sustaining the same, and the stipulation of March 6, 1912, as well as the motion for judgment on the pleadings. This motion was granted, and the plaintiff was given 10 days in which to file a reply, which it subsequently did. Thereafter the cause came on for trial upon the merits before the court sitting without a jury. At the conclusion of the trial the court made and entered its findings of fact, in which the facts as found are substantially the same as those stated in the complaint; and, in addition thereto, it was found that on or about the time when the application for stock was made by the defendant ...