Rattlemiller v. Stone

• Decision Date: 24 March 1902
• Citation: 68 P. 168,28 Wash. 104
• Court: Washington Supreme Court
• Parties: RATTLEMILLER v. STONE. [1]

68 P. 168

28 Wash. 104

RATTLEMILLER v. STONE. ^[1]

Supreme Court of Washington

March 24, 1902

Appeal from superior court, Walla Walla county; A. L. Miller, Judge.

Action by Barbara Rattlemiller against Henrietta M. Stone, as executrix of the will of B. F. Stone, deceased. From a judgment for plaintiff, defendant appeals. Affirmed.

Sharpstein & Sharpstein, for appellant.

Garrecht & Dunphy and Bennett & Sinnott, for respondent.

DUNBAR J.

This action was commenced by plaintiff against defendant upon a claim previously rejected by her as administratrix. The action is brought upon a certificate of deposit which was as follows: '$10,000. No. 1,458. The Walla Walla Savings Bank. Walla Walla, Wash., Aug. 22, 1892. This bank has received from L. Rattlemiller a deposit of ten thousand dollars in gold coin, returnable 12 months from date hereof to himself or his wife or order, on surrender of this certificate properly indorsed. This deposit will bear interest at the rate of six per cent. per annum for the said 12 months, and no longer. W. H. Stine, Manager.' It had at the time of the trial an indorsement written across its face in red ink, extending the time of payment six months from maturity, signed by Rattlemiller, the depositor, and by the bank officers; and upon the back it had the following indorsement: 'For value received, I hereby guaranty payment of the within note, waiving judgment, notice of nonpayment, and protest. [Signed] B. F. Stone.' Further like indorsements were made by William Stine and Milton Aldrich. It is admitted that Stone signed this guaranty, but it is claimed that it was without any consideration. The claim of the defendant is that the extension of time on the back of the note was made after the guaranty was executed and that Stone was thereby released from liability. The plaintiff's claim is that the extension of time and the indorsement were contemporaneous, and that the one was consideration for the other. Neither the extension of time nor the guaranty bears any date. Upon the trial of the cause the jury found in favor of plaintiff. Judgment was entered and from such judgment this appeal is taken.

It is alleged that the court erred in denying the motion made by defendant to strike out the sixth paragraph of the complaint which was to the effect that the Walla Walla Savings Bank was insolvent. But even if the allegation was unnecessary, no prejudice can be predicated upon it in this case; for during the trial of the cause it was shown in many instances, without objection, that the bank was insolvent.

The second assignment is that the court erred in denying defendant's motion for a nonsuit. It is argued that, if the extension was put on last, it would avoid the guaranty, unless Mr. Stone consented thereto, and that, if the guaranty was put on last, there must have been a consideration therefor; that the plaintiff, in her pleadings, and in response to defendant's allegation of want of consideration, did not claim that there was any consideration other than the extension, and, unless it appears that the extension was granted at the same time, it would not constitute a consideration. Outside of the fact that the motion was so general that the court was not advised of the reason therefore, we think there was no ground whatever shown by the record for the nonsuit. The evidence of consideration, outside of any extrinsic evidence, may be found in the guaranty itself, and the statements by the guarantor that the guaranty was made for a valuable consideration. This is a solemn statement, and ought to be binding in the absence of convincing testimony to the contrary, and there was sufficient evidence of Stone's consent to the extension of time to be submitted to the consideration of a jury.

The main question in this case is whether or not the indorsement by Stone was made...