Pacific Nat. Bank v. San Francisco Bridge Co.

• Decision Date: 08 December 1900
• Court: Washington Supreme Court
• Parties: PACIFIC NAT. BANK OF TACOMA v. SAN FRANCISCO BRIDGE CO.

63 P. 207

23 Wash. 425

PACIFIC NAT. BANK OF TACOMA v. SAN FRANCISCO BRIDGE CO.

Supreme Court of Washington

December 8, 1900

Appeal from superior court, King county; E. D. Benson, Judge.

Action by the Pacific National Bank of Tacoma, Wash., a corporation against the San Francisco Bridge Company, a corporation. From a judgment for defendant, plaintiff appeals. Affirmed.

McClure & McClure and F. S. Blattner, for appellant.

Ballinger Ronald & Battle, for respondent.

FULLERTON J.

This is an action on a promissory note. It appears from the record that on May 18, 1891, one George Roberts sold to the respondent his right in certain letters patent for a track-laying machine, together with six certain machines manufactured under the patents, reserving to himself a royalty of a certain sum per mile for every mile of railway track laid with the machines then manufactured or thereafter to be manufactured under the patent. The machines transferred were at various places; one being in the possession of Woods, Larson & Co. at or near Missoula, Mont and was at the time of the sale being used by them in the construction of a railroad known as the Missoula & Idaho Branch of the Northern Pacific. For this machine a bill of sale was given, which, after reciting the sale of the machine for a consideration of $1,000, contained a warranty on the part of the vendor to the effect that he would warrant and defend the sale of the same against the lawful claims of all persons whomsoever. After the sale was made, the respondent proceeded to locate and obtain possession of the machines, and succeeded in obtaining possession of all of them save the one held by Woods, Larson & Co. Roberts was notified of the failure of the respondent to obtain possession of this one, and thereupon made an effort himself to get it, but without success. The machine was held by Woods, Larson & Co. under a contract with Roberts, by the terms of which they were entitled to its use until the railroad they were then constructing was completed. They also claimed a lien on it for repairs made by themselves in a sum in excess of $1,800; a sum equaling, if not exceeding, the cost of a new machine. The matter remained in this condition until February 23, 1892, at which time the respondent purchased of Roberts his reserved interests in the latters patent, and as part of the consideration therefor executed the note sued on in this action. The note was placed in escrow with the Puget Sound National Bank of Seattle, the terms of the escrow agreement being evidenced by the following writing: 'The within note of $1,000.00, dated Feby. 23, 1892, made by San Francisco Bridge Co. to the order of George Roberts, and due one year after date, is to be held in escrow by the Puget Sound National Bank of Seattle to be delivered to said George Roberts when a certain Roberts railroad track laying machine now in the possession of Wood, Larson & Co. at Missoula, Montana, but owned by said San Francisco Bridge Co., is delivered to said San Francisco Bridge Co.; and it is further agreed that any expenses which may be sustained by said San Francisco Bridge Co. in obtaining possession of said machine is to be charged to said George Roberts, and credited on the within note before delivery thereof. Dated Feb. 23, '92. San Francisco Bridge Co., by J. D. Corey, Agent. George Roberts.' Subsequent to the execution of this agreement neither party made any effort to obtain possession of the machine, it remaining in the possession of Woods, Larson & Co. until as late as 1897, if not until the commencement of this action. In the meantime Roberts assigned his interests in the note to the Citizens' National Bank of Tacoma, which in turn assigned it to the appellant. No delivery of the note was made, either to Roberts, his assignee, or the appellant, but it remained in the possession of the Puget Sound National Bank until the trial of this action. At the conclusion of the testimony on the trial (which was being had before the court and jury) the appellant moved that the case be taken from the jury, and a judgment entered in its favor. The court thereupon took the case from the jury, but entered judgment for respondent. This appeal is from that judgment.

On the trial the appellant offered oral evidence tending to prove that at the time the escrow agreement was entered into, and as a part of the same transaction, the respondent undertook and promised that it would take all proper and necessary steps to obtain the possession of the track-laying machine from Woods, Larson & Co., cause the amount of expense, if any, it should be put to in obtaining such possession to be credited on the note, and permit the note to be given to Roberts. The trial court rejected this evidence on the ground that the written agreement...