Taylor v. Howard

• Decision Date: 13 September 1912
• Citation: 126 P. 423,70 Wash. 217
• Parties: TAYLOR v. HOWARD et ux.
• Court: Washington Supreme Court

126 P. 423

70 Wash. 217

TAYLOR v. HOWARD et ux.

Supreme Court of Washington

September 13, 1912

Department 2. Appeal from Superior Court, Island County; Lester Still Judge.

Action by R. K. Taylor against Ed Howard and wife. From a judgment for defendants, plaintiff appeals. Affirmed.

William Sheller, for appellant.

Robert McMurchie, of Everett, for respondents.

ELLIS J.

The plaintiff brought this action to recover the sum of $300 and interest thereon at the rate of 6 per cent. per annum from January 18, 1910, upon which date the complaint alleges the defendant Ed Howard borrowed that sum from the plaintiff for the use of the marital community composed of the two defendants. The answer denied these allegations of the complaint and contained certain affirmative matter, which was in turn put in issue by the reply, which also set up additional affirmative matter. It will be unnecessary to notice these affirmative allegations further than to state that they outline the evidentiary matter on either side, which might as well have been adduced on the general issue. The cause was tried to the court without a jury. From a judgment in favor of the defendants, the plaintiff has appealed.

The findings of the court to which the appellant's exceptions were directed, and the making of which are assigned as error, cover the vital questions of fact and may be synthesized as follows: That on January 18, 1910, there was between the plaintiff and one Hugh McLeod an open account, each claiming that the other owed him a sum in excess of $300; that prior to that time McLeod, as agent for the plaintiff, had effected a sale of certain lands of the plaintiff, and had taken as first payment thereon a note for $750, payable to his own order, signed by one Thomas and one Wallingford, and had hypothecated the note with the Bank of Coupeville to secure a loan to himself of $300; that thereafter and prior to January 18, 1910, Thomas paid to the plaintiff the purchase price of the land, $1,000 in money and $3,500 in notes secured by mortgage; that, pending the redelivery to him of the $750 note, Thomas withheld one note for $1,000 secured by the mortgage, and refused to deliver it until the $750 note should be surrendered; that, McLeod being unable to pay his loan from the bank and obtain the collateral note, he and the plaintiff went to the defendant Ed Howard, a mutual friend, and McLeod represented to the defendant Howard that the plaintiff owed McLeod a sum in excess of $300; that it was then agreed among the three that the plaintiff should pay McLeod's debt to the bank and take up the collateral note, and Howard would give the plaintiff his promissory note for the sum of $300 as a guaranty of repayment to the plaintiff of any sum the plaintiff should be found to have lost upon final settlement between plaintiff and McLeod by reason of his paying McLeod's debt to the bank; that the plaintiff then paid McLeod's debt to the bank, redeemed the collateral note, and obtained from Thomas the $1,000 note secured by the mortgage; that in December, 1909, and while the controversy existed between the plaintiff and McLeod as to mutual claims of indebtedness, the plaintiff borrowed from McLeod $200; that after the plaintiff had paid McLeod's debt to the bank and redeemed the collateral note it was mutually agreed between plaintiff, defendant Howard, and McLeod that before the plaintiff should be entitled to receive the guaranty note from Howard, or any payment from Howard on account of these transactions, the plaintiff should repay to McLeod the loan of $200; that the plaintiff never repaid to McLeod the $200, and never intended to repay it. The court also found that there was no consideration passing to Howard from either McLeod or the plaintiff, or otherwise, for the promise made by Howard to the plaintiff.

A reading of the statement of facts convinces us that all of these findings save one are substantially correct as sustained by a fair preponderance of the evidence, which is extremely conflicting. The finding that the $200, given by McLeod to the appellant in December, 1909, was given as a loan is not so sustained. We think the evidence fairly shows that it was given as a payment on account of indebtedness which the plaintiff was then insisting existed in his favor from McLeod. The evidence also shows that the later agreement of the plaintiff to repay to McLeod this $200 before he should be entitled to receive from the respondent Ed Howard the promised note of guaranty for $300 was in a sense coerced. When the appellant paid McLeod's debt of $300 to the bank to release the $750 note which McLeod had hypothecated as security, he did so through one Swain, who, on receiving the $750 note from the bank, delivered it either to McLeod or...