McNamara v. Jose

• Citation: 68 P. 903,28 Wash. 461
• Court: Washington Supreme Court
• Decision Date: 28 April 1902
• Parties: McNAMARA v. JOSE.

68 P. 903

28 Wash. 461

McNAMARA v. JOSE.

Supreme Court of Washington

April 28, 1902

Appeal from Superior court, King county; Geo. Meade Emory, Judge.

Action by Daniel McNamara against Alfred Jose. From a judgment for plaintiff, defendant appeals. Affirmed.

John E. Humphries and Harrison Bostwick, for appellant.

Wm Parmerlee, for respondent.

FULLERTON J.

The respondent brought this action against the appellant and one Thomas Carstens to recover upon a promissory note of which the following is a copy: '$1,000. Seattle, Wash., Dec 28th, 1899. On or before July 1, 1900, after date, without grace, I promise to pay to the order of James Daly one thousand dollars, for value received, payable only in United States gold coin. Payable at Cape Nome. Jose & Carstens, per Alfred Jose.' He alleged in his complaint that he purchased the note from the James Daly named therein as payee, prior to its maturity, for a valuable consideration without notice or knowledge of 'any defenses or equities existing in favor of defendants and against said Daly.' The appellant alone answered. He denied all of the allegations of the complaint, and alleged affirmatively in substance, that the note was given Daly as part of the purchase price of a certain lot situated in the town of Nome, Alaska, to which Daly had no title, and to which he falsely and fraudulently represented he had title as an inducement to the appellant to purchase the same, all of which was well known to the respondent at the time he purchased the note from Daly. At the trial of the cause the respondent called the appellant as a witness, who testified that he executed the note personally, that Carstens had not authorized him to sign his (Carstens) name thereto, and, while he believed he had authority to so sign it at the time, he did not in fact have such authority. On this being shown, the respondent dismissed as to Carstens, and the action proceeded against the appellant. At the conclusion of the evidence the court took the case from the jury, and directed a judgment to be entered in favor of the respondent against the appellant for the full amount of the note. The errors assigned raise the question of the correctness of this ruling.

From the evidence the jury could well have found that the note was procured by Daly from the appellant through his misrepresentations as to his title to the property deeded as a consideration for the note. It must, therefore, for the purposes of this appeal, be taken as established that the appellant has a defense to the note as against Daly, or against any one taking the note from him with knowledge of its infirmity or defect, 'or knowledge of such facts that his action in taking the instrument amounted to bad faith.' Sess. Laws 1899, p. 350, § 56. The circumstances under which the respondent received the note appear from his own testimony. He not only testified in his own behalf, but was called by the appellant, and subjected to a most searching examination. In brief, his story is that he purchased the note from Daly some three months after its execution, paying him therefor $470 in cash, and canceling an account he held against him of $30, making $500 in all; that he knew both Jose and Carstens at the time, and knew them to be solvent; that he made no inquiry other than of Daly as to the consideration for the note; that he made no inquiry of either Jose or Carstens concerning it, and had no notice of any infirmity in the instrument, or that the appellant had published a warning against its purchase, and that, if he had, he would not have purchased it; that when Daly first mentioned the note to him it was in the hands of one Thomas McCorey, whom Daly said he had bargained it to for $700, but did not think he had effected a sale, as he did not believe McCorey could raise the money; that he first asked him $700 for the note, but finally consented to take the amount paid; that he noticed the note was payable at Cape Nome, and he did not think it strange that Daly would sell the note for $500, 'as he was the kind of a fellow that wanted that much money at that time.' While it was shown that the respondent had a place of business, the character of that business--whether or not he made it his business, or a part of...