Rohweder v. Titus

• Decision Date: 12 May 1915
• Docket Number: 12249.
• Citation: 148 P. 583,85 Wash. 441
• Court: Washington Supreme Court
• Parties: ROHWEDER v. TITUS.

148 P. 583

85 Wash. 441

ROHWEDER v. TITUS.

No. 12249.

Supreme Court of Washington

May 12, 1915

Department 2. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action by E. C. Rohweder against Stanley H. Titus. Judgment for the defendant, and plaintiff appeals. Affirmed.

S Edelstein, of Spokane, for appellant.

Harry L. Cohn and Rosenhaupt & Grant, all of Spokane, for respondent.

CROW J.

Action to recover on a promissory note. From a verdict and judgment in defendant's favor, the plaintiff has appealed.

The controlling questions presented by appellant's assignments of error are whether the trial court erred in overruling his motions for a directed verdict and for a judgment non obstante. The note was executed and delivered to the L. D. McCarthy Auto Company, a corporation, by respondent, for $2,100, on January 2, 1912, and fell due on May 15, 1912. Appellant alleged that he purchased the note for value before maturity, and that he is a holder in due course. Respondent denied these allegations and for an affirmative defense pleaded payment to the original payee. Upon these pleadings the controlling issues were: (1) Whether the appellant was a holder in due course and (2) whether respondent had paid the note.

Appellant's contention, in effect, is that the undisputed evidence shows him to be a holder in due course. He testified that he purchased the note for $1,950 on January 18, 1912, and produced his canceled check for that amount and of that date, and, in answer to the question whether he gave the check for the note, replied, 'I think so.' He further testified that he had written respondent a letter on May 2, 1912, advising him of the fact that he held the note, and produced what purported to be a letterpress copy. This copy is on a single sheet of paper. No statement was made as to whether it was taken from a letter copybook, or from what source it came. On cross-examination appellant admitted that he was interested in the McCarthy Auto Company; that he was at one time a stockholder, and had represented it as a selling agent; and that he had purchased other notes from it. He stated that he did not know respondent when he purchased the note; that he made no inquiry relative to him or his financial standing, although he lived in Spokane; that he never went to see him about the note; that he wrote him on one or two occasions; that he received no answers; that he went to the auto company for payments on the note; that he commenced this suit more than one year after the note had matured; and that he did not know respondent at the time of the trial. He admitted a payment of $200 on the note, which was credited under date of January 18, 1913. This payment he said was turned over to him by the manager of the McCarthy Auto Company, of whom he demanded payment. It appeared in evidence that, prior to the commencement of this action, the auto company had gone out of business; that it was insolvent; and that its manager had left for parts unknown. In any event, no one appeared at the trial for or on behalf of the auto company. Appellant further claimed that he left the note with a Spangle bank as collateral security for a debt which he owed. The cashier of the bank testified that on May 1, 1912, he mailed to respondent a notice that the bank held the note, producing what he testified on his examination in chief was a copy. On his crossexamination, however, he testified that he had made the copy, not at the time it bore date, but from memory about one month before the trial; that the bank did not own the note; that it did not hold it as collateral security; that appellant simply requested him to hold the note; and that, when the bank took a note in the regular course of collection, its custom was to make some notation thereon to agree with a number in the bank. The original note which is before us discloses no such notation, nor has it any mark of identification to show that it was ever in any bank.

Respondent denied that he received any notice from appellant or from the bank; stated that he had paid the note in full to the original payee, part of the payment being made before maturity, that he did not hear of appellant's claim of ownership until long after the note had been paid,...