Seattle Sav. & Loan Ass'n v. Gardner J. Gwinn, Inc.

Decision Date16 February 1933
Docket Number24138.
CourtWashington Supreme Court
PartiesSEATTLE SAVINGS & LOAN ASS'N v. GARDNER J. GWINN, Inc. (two cases.

Department 1.

Appeal from Superior Court, King County; J. L. Sharpstein, Judge.

Actions by the Seattle Savings & Loan Association against Gardner J Gwinn, Inc., and others, which were tried together. From the judgments, named defendant appeals.

Affirmed.

Allen Froude, Hilen & Askren, of Seattle, for appellant.

Palmer Askren & Brethorst, of Seattle, for respondent.

MITCHELL Justice.

Gardner J. Gwinn, Inc., hereinafter spoken of as Gwinn, Inc., on September 8, 1927, in each of two transactions borrowed from the Seattle Savings & Loan Association the sum of $25,000 giving its note in that sum in each case, and securing the payment of each by a mortgage on separate real property. On October 13, 1927, Gwinn, Inc., gave a contract of sale of one property to William C. Wurnsted, and of the other piece of property to Ralph H. Rushton; each purchaser assuming and agreeing to pay the outstanding mortgage on the tract he contracted to purchase. About that time Gwinn, Inc., conveyed both properties to Worthington Fisher Company, a corporation, since which time Gwinn, Inc., has had no interest whatever in either property, and has made no payment on either of the notes or mortgages.

In June, 1928, Wurnsted and wife quitclaimed all their interest in one property to W. H. Payne, and in 1929 W. H. Payne acquired a contract to purchase the other property from Worthington Fisher Company, which had secured from Rushton all his rights under a contract to purchase that property. Neither Worthington Fisher Company nor Payne assumed or agreed to pay the debt, or any part of it, to the Seattle Savings & Loan Association.

Because of defaults in meeting the terms of the notes and mortgages, the Seattle Savings & Loan Association brought action on the notes and to foreclose the mortgages. Gwinn, Inc., Worthington Fisher Company, W. H. Payne and wife, and William C. Wurnsted and wife were made defendants in the two cases, according to their respective legal relations or interests in the properties. Defendants Payne and wife made no appearance in the actions. The two actions were tried together, and are thus presented on appeals. There was in each case judgment for the balance due on the promissory note against Gwinn, Inc., and also against the contract purchaser who had assumed and agreed to pay the mortgage, and also foreclosure of the mortgage and sale of the property, providing, as usual in such cases, for a deficiency judgment against Gwinn, Inc., and the contract purchaser who had agreed to pay the mortgage. Gwinn, Inc., has appealed in each case.

At the trial, counsel for the appellant offered to prove '* * * that on or about the first of October, 1930, an agreement was made--an oral agreement between Mr. Payne, the contract purchaser, and the Worthington Fisher Company, on the one hand, and the Seattle Savings & Loan Association on the other, to the effect that if they would--that is, Worthington Fisher and Payne would apply all of the net income from the property, after deducting only the operating expenses, to the Seattle Savings & Loan Association until such time as the delinquencies of principal, interest and the 1929 taxes which then existed were paid, and the Seattle Savings & Loan Association would refrain from foreclosing the mortgage and make no demand on the note or mortgage during that period,' which offer was, in effect, repeated by an '* * * offer to prove by this witness that on or about October 1, 1930, agreement was entered into by the Worthington Fisher Company, this being Mr. Fisher, one of the officers of that company, and W. H. Payne, who was then the contract owner of that property, by the terms of which they agreed to pay over to the Seattle Savings & Loan Association all of the net income from the property until the delinquencies...

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7 cases
  • Metropolitan Mortg. & Securities Co., Inc. v. Becker
    • United States
    • Washington Court of Appeals
    • March 10, 1992
    ...American Fed. Sav. & Loan Ass'n v. McCaffrey, 107 Wash.2d 181, 189, 728 P.2d 155 (1986) (citing Seattle Sav. & Loan Ass'n v. Gardner J. Gwinn, Inc., 171 Wash. 695, 698, 19 P.2d 111 (1933); Wilson v. Kirchan, 143 Wash. 342, 346-47, 255 P. 368 (1927); see also G. Nelson & D. Whitman, Real Est......
  • DeYoung v. Cenex Ltd.
    • United States
    • Washington Court of Appeals
    • March 25, 2000
    ...P.2d 345 (1997). A mortgagee can elect to sue either on the mortgage or on the promissory note. Seattle Savings & Loan Ass'n v. Gardner J. Gwinn, Inc., 171 Wash. 695, 698, 19 P.2d 111 (1933). The mortgagee may sue and obtain a judgment upon the notes and enforce it by levy upon any property......
  • American Federal Sav. & Loan Ass'n of Tacoma v. McCaffrey
    • United States
    • Washington Supreme Court
    • November 13, 1986
    ...the debts, the mortgages security for payment of the debts. Either may be the basis of an action. Seattle Sav. & Loan Ass'n v. Gardner J. Gwinn, Inc., 171 Wash. 695, 698, 19 P.2d 111 (1933); Wilson v. Kirchan, 143 Wash. 342, 346-47, 255 P. 368 (1927); see also G. Nelson & D. Whitman, Real E......
  • Boeing Employees' Credit Union v. Burns
    • United States
    • Washington Court of Appeals
    • March 19, 2012
    ...deed of trust. ¶ 46 We also note that among the cases that the Sullins court cited to support its holding was Seattle Savings & Loan Ass'n v. Gardner J. Gwinn Inc.55 In that case, the supreme court stated: In cases of notes and mortgages, the notes represent the debts; the mortgages securit......
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