Pacific Southwest Trust & Sav. Bank v. Mayer

• Decision Date: 18 March 1926
• Docket Number: 19700.
• Citation: 244 P. 248,138 Wash. 85
• Court: Washington Supreme Court
• Parties: PACIFIC SOUTHWEST TRUST & SAVINGS BANK v. MAYER et al.

244 P. 248

138 Wash. 85

PACIFIC SOUTHWEST TRUST & SAVINGS BANK v. MAYER et al.

No. 19700.

Supreme Court of Washington

March 18, 1926

Department 1.

Appeal from Superior Court, King County; Ralston, Judge.

Action by the Pacific Southwest Trust & Savings Bank against J. P Mayer and others. From a judgment against named defendant, he appeals. Reversed and remanded, with instructions.

Fred H Peterson and Stuart D. Barker, both of Seattle, for appellant.

FULLERTON, J.

This is an action brought to recover upon a promissory note. There was a trial of the action before the court sitting without a jury, resulting in a judgment against the defendant J. P Mayer. From this judgment Mayer appeals.

The facts appear in the findings of the trial court; the evidence not being in the record. The findings are as follows:

'I. That the Pacific Southwest Trust & Savings Bank plaintiff above named, is now and was at all times herein mentioned a corporation organized and existing under and by virtue of the laws of the state of California as a banking corporation.

'II. That at all times herein mentioned the defendants J E. Griffin and Annie G. Griffin were husband and wife, and J. P. Mayer and J. E. Griffin were copartners, doing business under the name and style of Mayer & Griffin.

'III. That on May 14, 1924, at Ocean Park, Cal., defendants above named, for value received, executed and delivered to the order of plaintiff their certain promissory note, copy of which is set out in plaintiff's complaint and marked 'Exhibit A,' in the sum of $300, with interest at 8 per cent., further providing for an attorney's fee of 10 per cent. on the amount unpaid, which note became due on August 14, 1924.

'IV. That on August 14, 1924, said J. E. Griffin and wife executed and delivered to plaintiff, in place of Exhibit A, a new promissory note for $300 due December 14, 1924, and that on February 14, 1925, said Griffin and wife executed and delivered to plaintiff, in lieu of said new note, their further new note for $300, due in 90 days. That plaintiff never surrendered the original note, nor at any time ever agreed to release said J. P. Mayer, but said Griffin and wife have been released on said original undertaking by the execution of said new notes. That Griffin and wife paid interest on said notes to February 14, 1925. That defendants were all served with copies of summons and amended complaint in the above-entitled cause for February 14, 1925, at which time the interest on said note for January and February was past due. That J. P. Mayer, defendant above named, was served with copy of original summons and complaint in above cause December 24, 1924. That there is still due and owing plaintiff from the said J. P. Mayer the sum of $300, with interest from February 14, 1925, at 8 per cent., together with the sum of $30 attorney's fee and costs of suit.'

From the findings, the court made the following conclusion of law:

'I. That plaintiff is entitled to judgment against J. P. Mayer in the sum of $300, with interest from December 14, 1924, at 8 per cent. per annum, together with $30 attorney's fee and costs of suit, and that J. E. Griffin and Annie G. Griffin, his wife, are entitled to be dismissed from said action.'

The Exhibit A, referred to in the findings, is as follows:

'$300.00

Ocean Park, California,

May 14, 1924.

'August 14, 1924, after date, for value received, I promise to pay to the Pacific-Southwest Trust & Savings Bank or order, at its banking house at Ocean Park, California, three hundred and 00/100 dollars, with interest, payable monthly, at the rate of eight per cent. per annum from date until paid, and attorneys' fees of ten per cent. of the amount then unpaid, if placed in the hands of an attorney for collection, or if suit be commenced, or other proceeding be taken to enforce the payment of this note. Should the interest not be paid when due, then both principal and interest shall become immediately due and payable at the option of the holder of this note.

'Should the interest not be paid when due, it shall be compounded monthly thereafter, and bear the same rate of interest as the principal. Principal and interest payable in gold coin of the United States of America of the present standard. The makers, sureties, guarantors, and indorsers of this note hereby consent to extensions of time at or after the maturity thereof and hereby waive diligence, protest, demand, and notice of every kind.

'Should this note be signed by

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