Nelson v. Flagg

• Citation: 50 P. 571,18 Wash. 39
• Parties: NELSON v. FLAGG ET AL.
• Decision Date: 19 October 1897
• Court: United States State Supreme Court of Washington

50 P. 571

18 Wash. 39

NELSON v. FLAGG ET AL.

Supreme Court of Washington

October 19, 1897

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

Action by Ole Nelson against A. E. Flagg and wife and Dan C. Ross on a note. From a judgment for plaintiff, defendant Ross appeals. Reversed.

Lindsay King & Turner, for appellant.

John E Humphries, E. P. Edsen, and Humphries, Humphrey & Edsen, for respondent.

GORDON J.

The appellant was surety upon a promissory note executed by defendants Flagg and wife to the respondent. The note bears date November 21, 1893, payable one year thereafter, with interest at 10 per cent. At or about the time of the maturity of the note, without the knowledge or consent of the appellant, the makers and the respondent entered into an arrangement whereby an extension of the time of payment for the period of one year was granted. The contract of extension was evidenced by the following memorandum, indorsed on the back of the note, viz.: "November 21, 1894. Extended one year from date at the request of makers, A. E. Flagg and Lola J. Flagg. [Signed] Ole Nelson." The court below found that "the plaintiff subscribed his name without receiving any consideration for the same, and nothing was paid or agreed to be paid, and the written statement contained the whole contract between plaintiff and defendants Flagg in regard to the extension of time," and rendered judgment against the surety, who has appealed therefrom.

The brief of respondent contains an objection to the court's considering appellant's exceptions, for the reason that more than five days elapsed between the entering of judgment and the filing of the exceptions. Were we to sustain the objection to the exceptions, it would still remain to be considered whether the findings justify the judgment, and the determination of that question necessarily involves the sole question arising on the merits, viz. was the agreement for extension based on any sufficient consideration? It becomes immaterial, therefore, that we should consider or pass upon the objection, and the case will be disposed of upon the merits.

The question involved is one upon which the authorities are conflicting, and, in its present form, is before this court for the first time, although in Binnian v. Jennings, 14 Wash. 677, 45 P. 302, very much of the opinion of the court was applicable to the case presented here. While the real question in that case was whether the payment of interest in advance for a definite period constituted a sufficient consideration, this court, in holding that such consideration was sufficient, supported its reasoning by a citation of cases involving facts similar to those presented by this record. But, treating the question as one heretofore undetermined by this court, we think that there are all the elements of a valid contract to be gathered from the indorsement under consideration. The effect of the indorsement in this case, in the light of the finding that it was at the...