Seattle Nat. Bank v. Carter

• Decision Date: 24 December 1895
• Citation: 43 P. 331,13 Wash. 281
• Parties: SEATTLE NAT. BANK v. CARTER ET AL.
• Court: Washington Supreme Court

43 P. 331

13 Wash. 281

SEATTLE NAT. BANK v. CARTER ET AL.

Supreme Court of Washington

December 24, 1895

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

Action by the Seattle National Bank, a corporation, against George R. Carter, Daniel Jones, and others, on promissory notes, and to foreclose a mortgage. From a judgment for plaintiff defendant Jones appeals. Affirmed.

James Leddy, Gleason & Babcock, and Thompson, Edsen & Humphries for appellant.

Carr &amp Preston and W. R. Bell, for respondent.

DUNBAR, J.

This case was originally begun by the respondent in the equity department of King county, but, some questions of fact arising for determination between the appellant and the respondent, it was transferred to the law department in the superior court of said county. The notes in suit were made by the appellant as a subscription in aid of an enterprise in which he and a number of other persons were interested, viz the building of a boulevard along the west shore of Lake Union. At a meeting of those interested in the enterprise, at which appellant was present, he subscribed $2,500 towards carrying on the enterprise, and a committee was elected and appointed by the meeting as an executive committee to have full charge and control of the work. This committee consisted of L. H. Griffith, Edward Bluett, and C. E. Remsburg. The committee, through its manager, Griffith, afterwards sold the notes given by appellant to respondent, the Seattle National Bank. The notes were made payable to the order of the members of the committee. One of the notes sued on is a renewal of the note, made payable three months after its date. The renewal was made after the maturity of the original note, and while it was held by respondent. The other note was made payable six months after date. Griffith indorsed on the back of each note the following: "L. H. Griffith, Edward Bluett, C. E. Remsburg, Committee, by L. H. Griffith, Chairman," and delivered them, so indorsed, to the respondent, and received from the respondent the sum of $2,500, the full face of the notes. This money was deposited to the credit of the treasurer of the boulevard enterprise, and was expended in prosecuting that enterprise. George R. Carter and Nellie Phinney, as the executrix of the last will and testament of Guy C. Phinney, deceased, were made defendants for the purpose of reforming and foreclosing a certain mortgage given as security for the notes in question; but they have not appealed from the judgment rendered, and need not be further noticed in this opinion. The amended complaint alleged that, prior to the maturity of the notes in suit, the said Griffith, Bluett, and Remsburg, as such committee, for a valuable consideration, duly indorsed and delivered the said promissory notes to plaintiff, and plaintiff then became, and now is, and ever since has been, the owner and holder of said promissory notes. These allegations are denied by general denial in the amended answer of the appellant, and on this denial the principal point in this case is raised.

We have examined the testimony in this case in minutiæ, and believe that it is sufficient to sustain all the contentions of the respondent as to the manner of executing the notes, the reason for their execution, the authority conferred upon Griffith, the manager of the committee, to transfer the notes, and in every other particular. On all these propositions, it is true, the testimony is conflicting; but we think it would be sufficient to sustain the verdict, even if the law of the case were as contended by appellant. But as the question of inconsistent defenses is raised squarely in this case, and has been argued with much zeal and ability by the attorneys on both sides, we have concluded to enter upon an investigation of that question and settle the law, so far as this state is concerned, on that proposition. Cases from this court are cited by both counsel to sustain their respective contentions, but whatever may have been said by this court on this subject heretofore has been of the character of dicta, or an incidental reference to a question which was not material to the decision of the case under discussion. So we feel at liberty to enter upon its investigation as an original proposition. The answer, as we have said, denies that the plaintiff was the owner and holder of said notes, or that they had been indorsed and delivered to it for a valuable consideration, or otherwise. The court in its instructions, to which the appellant duly excepted, charged the jury that under the pleadings in this case the only question for their consideration was the question of whether the notes were paid. The defendant, after his general denial, which was upon information and belief, affirmatively alleges the transfer of the notes to the plaintiff. He alleges, in his first affirmative defense, that the notes were executed and delivered to L. H. Griffith, Edward Bluett, and C. E. Remsburg, and that, subsequently to the execution and delivery of the said notes, the said committee transferred them to the plaintiff, and, in another paragraph of the same affirmative defense, alleges the payment of these notes by L. H. Griffith to the respondent. The averment of the transfer of the notes to the respondent is repeated in the second affirmative defense, where it is also alleged that the respondent, for a valuable consideration, extended the time of payment of the notes, and by reason of such extension of time the appellant claims that he is exonerated from the payment of the notes. The allegation of transfer is again repeated in the third affirmative defense, and an agreement for the settlement and the compromise for the appellant's liability upon said notes is there averred, by which it is alleged it was agreed that certain lands owned by the appellant should be conveyed in full payment of the notes, and appellant alleges the conveyance of the said lands to George R. Carter as trustee for the respondent, in full payment of the said notes. He further alleges, in the third affirmative defense, that, subsequently to the maturity of the notes, he demanded the surrender to him and possession of said notes. Now, the question under this pleading is, was the court justified in instructing the jury, in substance, that the question of ownership of the notes and transfer to the respondent was not for their consideration?

On this subject of inconsistent defenses there have been many conflicting decisions, but we think their origin has been in a misunderstanding of the cases cited and relied upon as sustaining the doctrine that inconsistent defenses, under the reformed practice of pleading, could be maintained; and, secondly, a loose discussion and misapprehension of what inconsistent pleadings really are. The idea that inconsistent defenses, to the extent of being false defenses, could be tolerated under the Code, has received a stimulus from the announcement of Mr. Pomeroy, in his excellent work on Remedies and Remedial Rights (section 722), that, "assuming that the defenses are utterly inconsistent, the rule is established by an overwhelming weight of judicial authority that, unless expressly prohibited by the statute, they may still be united in one answer. It follows that the defendant cannot be compelled to elect between such defenses, nor can evidence in favor of either be excluded at the trial on the ground of the inconsistency." This announcement is attempted to be fortified by the citation of a large number of authorities. It was insisted by counsel for the respondent that an investigation of these authorities would show conclusively that they do not bear out the statement made by the author, and for the purpose of obtaining all the light possible on this question we have carefully examined the cases cited, and are forced to the conclusion that the learned author was unwarranted in making the assertion that the rule he announced was established by an overwhelming weight of judicial authority, or any weight of authority at all, under the code practice. We think it legitimately follows, however, that if these inconsistent defenses are allowed to be pleaded, evidence under them cannot be excluded at the trial on the ground of the inconsistency. Then, if they are inconsistent to the extent that, if one of the averments in the answer is true, the other must be false, and we follow the rule, as we must, that, if it is a proper subject of allegation, it is a proper subject of proof, a court of justice is placed in the absurd position of listening to proof of a defendant tending to sustain one proposition, and in the next breath proving another proposition, the facts of which are inconsistent with the one just testified to. This theory, carried to its logical result, would permit a defendant who was sued upon a promissory note to allege nonexecution, want of consideration, and payment. Under such allegations he would be permitted to swear that he never executed the note; that he did execute the note, but that it was without consideration; and that he did execute the note, that the consideration was good, but that he had paid the same. Such a practice as this would not only be farcical, but absolutely wrong and immoral, and an encouragement of perjury; and the example given is not extravagant, if the theory announced by the author be correct.

We take it that the only object of a lawsuit is the elicitation of truth, and that the only object of pleadings is to aid in determining the truth of the controversy. But the result of allowing pleadings to stand which are inconsistent, to the extent of being untrue, would have exactly the opposite tendency, and courts would simply become machines to aid unconscionable litigants in avoiding their just...