Shuey v. Holmes

• Citation: 54 P. 540,20 Wash. 13
• Court: United States State Supreme Court of Washington
• Decision Date: 23 September 1898
• Parties: SHUEY v. HOLMES ET AL.

54 P. 540

20 Wash. 13

SHUEY v. HOLMES ET AL.

Supreme Court of Washington

September 23, 1898

Appeal from superior court, King county; E. D. Benson, Judge.

Action by H. O. Shuey, as receiver of the Seattle Savings Bank against H. E. Holmes and Kate T. Holmes. There was a judgment for plaintiff, and defendants appeal. Reversed.

Struve Allen, Hughes & McMicken, for appellants.

Clise &amp King, for respondent.

SCOTT, C.J.

This action was brought against the defendants, husband and wife to recover upon a promissory note executed by the defendant H. E. Holmes to the Seattle Savings Bank, alleged to have been given in payment of 30 shares of the capital stock of said bank. Several affirmative defenses were pleaded, to which the plaintiff demurred. The demurrers were sustained and, the defendants electing to stand on their answer, judgment was rendered for the plaintiff, and this appeal was taken.

The first defense pleaded will be passed, as it is, in effect, included in the second. It is alleged, in substance, that there was a want of consideration for the execution of the note; and, furthermore, that at the time of its execution the bank, then being engaged in business, represented to defendant H. E. Holmes that it had come into possession of a number of shares, including the shares in question, of its own capital stock; that it was contrary to law for it to hold said stock, and it was necessary that the same should be formally issued, and desired said defendant to take said 30 shares of stock temporarily, and give his note to the bank therefor at par value, until said stock could be sold to and paid for by actual purchasers; and that thereupon said defendant, as an accommodation to said bank, executed and delivered the note in question, and took said stock accordingly.

The character of the receivership does not appear in the pleadings. It is not alleged in the complaint that the bank was insolvent nor that it owed any debts, and the action must be viewed as though it had been brought by the bank; and the cases of Horton v. Banking Co., 15 Wash. 399, 46 P. 409, 47 P. 435, and Barto v. Nix, 15 Wash. 563, 46 P. 1033, consequently have no application.

Under section 326, vol. 2, Hill's Code, a receiver may be appointed for other purposes than for the winding up of an insolvent concern, and there can be no presumption that it was insolvent. Therefore, as between the bank and the defendants, a complete...