Frazey v. Casey

• Decision Date: 18 May 1917
• Docket Number: 13885.
• Citation: Frazey v. Casey, 96 Wash. 422, 165 P. 104 (Wash. 1917)
• Parties: FRAZEY v. CASEY.
• Court: Washington Supreme Court

165 P. 104

96 Wash. 422

FRAZEY v. CASEY.

No. 13885.

Supreme Court of Washington

May 18, 1917

Department 2. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by Charles J. Frazey against Louis Gilbert and others. From a judgment, defendant J. T. Casey appeals. Reversed.

Heber McHugh, C.J. Smith, John T. Casey, and Tucker & Hyland, all of Seattle, for appellant.

Myers &amp Johnstone, of Seattle, for respondent.

MOUNT J.

This is an action at law upon a promissory note. The plaintiff had judgment below against each of the defendants. The defendant Casey has appealed.

The facts are as follows: On March 13, 1911, the defendants Louis Gilbert and Catherine Gilbert, his wife, executed and delivered their promissory note to respondent for $850, with interest at 8 per cent. On the same date, a mortgage upon tract 20, Rainier Beach Garden Tracts, in King county, was given by Gilbert and wife to secure the payment of the note to respondent Frazey. Thereafter, on June 20, 1913, Gilbert and wife sold the mortgaged land to appellant, John T. Casey for $3,300. Mr. Casey assumed, as part of the purchase price the note for $850 due to respondent Frazey, also another note for $1,000, which was secured by a first mortgage, and paid $500 in cash. He gave a third mortgage to Gilbert and wife for $950. The deed from Gilbert and wife to Casey did not mention the mortgages, but a contract was prepared by Gilbert and wife, and delivered to Casey to be signed. The contract provided for the assumption by Casey of all the obligations against the property. Mr. Casey did not sign the contract, but accepted the deed, which did not mention the mortgages. The contract of assumption was oral. On the trial of the case Mr. Casey testified that he purchased only the equity of Gilbert and wife in and to the real estate, but we are satisfied, from the evidence, that he agreed to purchase for $3,300, which was to be paid as follows: $500 in cash; $950 secured by a third mortgage; and he assumed the obligations against the property, being two mortgages, one for $1,000, in favor of Mr. Cole, and the other for $850, the latter securing the note sued on in this case. The complaint, which is in the ordinary form upon a promissory note, does not mention the fact that a mortgage was given to secure the note. It makes Mr. Casey a party by the following allegation:

'That after the execution of said promissory note, and, to wit, on the 19th day of January, A. D. 1914, the defendant John T. Casey purchased certain real estate from the other defendants, and as part of the purchase price of said property said Casey assumed and agreed to pay the said promissory note.'

In answer to the complaint, Casey denied that allegation. It is apparent that the action is at law upon the promissory note. Section 3409, Rem. Code, provides:

'No person is liable on the instrument whose signature does not appear thereon, except as herein otherwise expressly provided. But one who signs in a trade or assumed name will be liable to the same extent as if he had signed his own name.'

Under this section of the statute, Mr. Casey's signature must appear upon the note before he may be held liable thereon. Mr. Casey was not a maker of the note. He did not indorse it and, if this section means what it says, it is difficult to understand how Mr. Casey may be held liable in an action at law upon the note, which he did not sign or indorse. The court...