Lowry v. Moore

• Decision Date: 15 February 1897
• Citation: 48 P. 238,16 Wash. 476
• Parties: LOWRY v. MOORE.
• Court: Washington Supreme Court

48 P. 238

16 Wash. 476

LOWRY v. MOORE.

Supreme Court of Washington

February 15, 1897

Appeal from superior court, King county; R. Osborn, Judge.

Action by C. B. Lowry against William H. Moore to recover on a note. Judgment for plaintiff, and defendant appeals. Affirmed.

Condon & Wright and William H. Moore, for appellant.

Isaac D. McCutcheon, for respondent.

GORDON J.

Respondent brought this action to recover upon a promissory note. The complaint contains the usual allegations. The answer of the defendant contained general denials of the allegations of the complaint, and as an affirmative defense set forth that the note in suit was executed, delivered, and made payable in the state of Kentucky; that at the time it became due the defendant and the payee of the note were nonresidents of the state of Washington, and resided in the state of Kentucky. The answer then alleges that actions upon promissory notes like the one in question are required by the law of the state of Kentucky to be brought within five years that according to the laws of Kentucky, where a cause of action accrues in that state against a resident thereof, and after such cause of action accrues the defendant shall depart from and reside out of the state, the time of his absence therefrom shall be deemed and taken as a part of the time limited for the commencement of such action. It is also alleged in said answer that the cause of action did not accrue within five years before the commencement of such action. The respondent demurred to the affirmative defense and his demurrer was sustained, and thereupon the appellant served written notice of his election to stand upon his affirmative defense, and refused to amend. Thereafter respondent served written interrogatories upon the appellant pursuant to statute, which interrogatories, and the answers of the appellant thereto, are as follows: "(1) Q. Were you ever acquainted with Henry M. Lowry, the payee of the note on which this action is based, and with C. B. Lowry, the assignee of said note, or either of them? A. I do not know that I was ever acquainted with Henry M. Lowry, the payee of the note on which this action is based, or with C. B. Lowry said to be the assignee of said note, or with either of them. (2) Q. If so, state where you knew them, and how long you knew them or either of them. A. I once knew an Henry M Lowry, who lived in the state of Kentucky, and a C. B. Lowry who also lived in the same state; I knew them for a number of years. (3) Q. State whether you ever saw the note on which this action is based, and at what times and places and under what circumstances. A. I do not know. (4) Q. Did you execute and deliver that note? A. I do not know. (5) Q. If so, what was the consideration therefor? A. I do not know. (6) Q. Do you know the signature of Henry M. Lowry, the payee of said note? A. I do not know. (7) Q. Have you not, prior to the commencement of this action, had this note presented to you, and did you not examine it together with the indorsement thereon? A. I do not know. (8) Q. If so, state whether the signature subscribed to the assignment thereon is the signature of the said H. M. Lowry, the payee. A. I do not know. (9) Q. Has any demand been made upon you for the payment of said note, prior to the commencement...