Stinson v. Sachs

• Decision Date: 07 March 1894
• Citation: 36 P. 287,8 Wash. 391
• Parties: STINSON v. SACHS.
• Court: Washington Supreme Court

36 P. 287

8 Wash. 391

STINSON v. SACHS.

Supreme Court of Washington

March 7, 1894

Appeal from superior court, Jefferson county; R. A. Ballinger Judge.

Action by F. L. Stinson, against Morris B. Sachs, upon a promissory note given by said Morris B. Sachs, payable to the order of one W. H. Marston, and by him indorsed to plaintiff. Plaintiff obtained judgment. Defendant appeals. Affirmed.

Geo H Jones, for appellant.

Robert W. Jennings, for respondent.

STILES J.

Appellant's answer admitted the execution of the note sued on, and its delivery to the payee, Marston, but denied its indorsement to the respondent. As part of an affirmative defense it was also set up that in taking the note, which was given in payment of a life insurance premium, Marston was acting as the agent of respondent, who seems to have been the general soliciting agent of the insurance company. The evidence established this fact clearly, and thereby obviated the point which appellant makes that no sufficient proof was offered as to the indorsement; for, if Marston was respondent's agent, and took the note payable to himself, respondent could sue on it without any indorsement, since it was his note, and not Marston's. The answer fully supplied what might have been defects in the complaint, in that it did not state the agency, and allege the real payee to be respondent. Appellant counterclaimed for services alleged to have been rendered by him at Marston's request, as the agent of respondent, and gave testimony to sustain his demand; but he did not show any authority in Marston to bind respondent to a contract covering such services, and respondent's testimony was that Marston had no such authority. It was incumbent upon appellant to show the existence of such authority when it was challenged, as the services were not such as come within any implied authority of a mere soliciting subagent. The court withdrew the counterclaim from the consideration of the jury and it could not have lawfully done otherwise.

The condition of the case left no defense to the note. The principal points made are all covered by the disposition of the case here made. A point is made that the court refused to grant defendant's motion for judgment on the pleadings because a reply was not filed within one day after service of the answer containing a counterclaim. The demand for this action seems to have been based on a rule of court which is not...