Griffin v. Lear

• Decision Date: 19 January 1923
• Docket Number: 17498.
• Citation: 123 Wash. 191,212 P. 271
• Parties: GRIFFIN v. LEAR.
• Court: Washington Supreme Court

212 P. 271

123 Wash. 191

GRIFFIN v. LEAR.

No. 17498.

Supreme Court of Washington

January 19, 1923

Department 1.

Appeal from Superior Court, King County; Everett Smith, Judge.

Action by Julia H. Griffin against Harry B. Lear, as executor of the estate of Julia A. Underwood, deceased. Judgment for plaintiff, and defendant appeals. Affirmed.

Poe &amp Falknor and H. A. M. Bonnar, all of Seattle, for appellant.

Carroll Hendron, of Seattle, for respondent.

BRIDGES J.

On and prior to April 17, 1911, the plaintiff, Mrs. Griffin, and Mrs. Julia A. Underwood (now deceased), were intimate friends and business associates. Together they owned and operated an apartment house in the city of Seattle on which there was a mortgage for $3,200. Mrs. Underwood had previously become deeply interested in, and together with other associates had purchased, a tract of orchard lands located near the city of Wenatchee. A small portion of the purchase price was paid down and a large mortgage given to secure the deferred payments. These lands were subsequently conveyed to the Seattle-Wenatchee Orchard Company, a corporation under the laws of the state of Washington. Mrs. Underwood was the chief stockholder, an officer, and the controlling spirit of this company. The plan was to sell so-called units of profit in the company for the purpose of raising money. The orchard was for that purpose divided into 2,000 units. The purchaser of units was not to become a stockholder, but was to be entitled to certain profits which the company might make. On the date first mentioned, Mrs. Griffin had some $1,600 which she desired to put at work, either in some safe investment or drawing interest. Mrs. Underwood had asked her to invest this money in the units above mentioned. After some discussion with her husband, who advised against the investment, Mrs. Griffin made out the usual check and together with her husband took it to Mrs. Underwood. There a discussion arose as to the advisability of the investment, and then Mrs. Underwood assured them that she would see that the money was returned. At that time, and before the check was delivered, additional words were written on it, so that when it was delivered it read as follows:

'Seattle, Wash., April 17, 1911.

'Pay to the order of Julia A. Underwood $1,600, sixteen hundred dollars, to invest Wenatchee Orchard Co. until called. 10 per cent. guaranteed.'

Thereafter Mrs. Underwood cashed the check by indorsing her name on the back thereof. Shortly after that some of the unit certificates were issued by the company and mailed and delivered to Mrs. Griffin. The company was unable to sell any considerable amount of its units, and its mortgage on the orchard lands was soon foreclosed, and the company lost all of its property. By this time Mrs. Griffin was pressing Mrs Underwood for her money. On September 17, 1915, Mrs. Underwood wrote Mrs. Griffin as follows:

'I can only promise to pay the $1,600 with interest in some future time. You will never lose through me.'

And again, but on a date which is not certain, but probably during 1916, Mrs. Underwood wrote Mrs. Griffin:

'I cannot give more definite assurances than I have to Mr. Griffin, you have full liberty to pay yourself from the rents. I think the Armistice will be signed soon, and Mr. Hartman (who was also interested in the orchard lands) will return. Will try and adjust the matter then.'

And again under date of May 13, 1917, she wrote Mrs. Griffin:

'I am in no position to pay you now. I will say again you will never lose through me whether Mr. Hartman settles or not, I will take care of your interest some way. I have not denied that you gave me the $1,600.'

Mrs. Underwood died a resident of the city of Seattle on May 26, 1921. Shortly thereafter the appellant was appointed executor of the estate, and a claim made by Mrs. Griffin for the $1,600 and interest was disallowed, and she commenced this suit on September 12, 1921. There was a judgment in her favor for $3,192, which amount represents the $1,600 plus 10 per cent. interest from the date of the check above mentioned.

The appellant contends that the check given by Mrs. Griffin to Mrs. Underwood is insufficient as a writing to evidence any indebtedness, for the reason that it is too meager, incomplete, and informal, and that no right of action can be based thereupon, and that the oral testimony tending to prove that Mrs. Underwood agreed to repay the $1,600 with interest was improperly received because the debt, if any, was that of the corporation, and an oral agreement concerning it would violate the statute which requires that an undertaking to pay the debt of another is void unless in writing. It is further contended that, if the oral agreement was sufficient upon which recovery might ordinarily be made, it is controlled by the three-year statute of limitations, and that, if the writing itself be otherwise sufficient to sustain a recovery, it is controlled by the six-year statute of limitations, and that in either event the claim is long since outlawed, and that the letters which we have quoted are insufficient to stay the running of the statute or to create a new indebtedness on which recovery may be had.

It is plain to us that the writing constituting the check made by Mrs. Griffin was sufficient upon which to base a right of recovery. In construing this instrument, we must take into consideration the circumstances, as shown by the oral testimony, surrounding its execution, and which led to the writing in the checks the words 'to invest in Wenatchee Orchard Company until called, 10 per cent. guaranteed.' It is contended that this oral testimony was inadmissible because it tended to vary or alter the terms of the writing. We cannot so consider it. It has always been held that testimony may be properly received, showing the circumstances and conditions surrounding the execution of a written instrument, not for the purpose of modifying, varying, or adding to that instrument, but for the purpose of assisting in construing the writing and giving light to any ambiguous portions thereof. The oral testimony in this case went no farther then we have indicated. The check plainly shows that Mrs. Griffin was paying to Mrs. Underwood $1,600 to invest in the Wenatchee Orchard Company until such time as the money snould be demanded by Mrs. Griffin, at which time the principal should be returned by Mrs. Underwood with interest at 10 per cent. The letters written by Mrs. Underwood, if they show anything at all, show that it was her distinct understanding that she would repay this money with interest whenever a demand therefor was made, and admit her liability therefor.

Some contention is made by appellant that the testimony fails to show who wrote in the check the words 'to invest in Wenatchee Orchard Company until called. 10 per cent. guaranteed.' While it may be admitted that the testimony leaves a doubt as to who did this writing, yet it does clearly show that it was done immediately before the check was delivered to Mrs. Underwood and with her knowledge and before she got money thereon by indorsing it. Whoever may have written the words quoted is immaterial, because if Mrs. Underwood did not write them she adopted them. The acceptance of the check by Mrs. Underwood with her signature on the back thereof is amply sufficient to make a contract binding upon her. 'A contract may be formed by accepting a paper containing terms. If an offer is made by delivering to another a paper containing the terms of the proposed contract, and the paper is accepted, the acceptor is bound by its terms.' 13 C.J. 277. Under all the circumstances shown here, we are clear that the writing was amply sufficient to form a binding obligation on Mrs. Underwood to repay the $1,600, with interest, on demand.

Nor can we agree with the contention that the obligation was on behalf of the orchards company and that it alone is liable. Both the writing and the oral testimony show that it was Mrs. Underwood who was to stand liable for the return of the money.

It is contended, however, that since this writing was made April 17, 1911, it became outlawed six years from that date, and that the letters written by Mrs. Underwood are wholly insufficient to stay the bar of the statute or to remove the bar if it had already occurred. We are confident that they are amply sufficient for either purpose. Section 176, Rem. Code, says:

'No acknowledgment or promise shall be sufficient evidence of a new or continuing contract whereby to take the case out of the operation of this chapter, unless the same is contained in some writing signed by the party to be charged thereby; but this section shall not alter the effect of any

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