Toon v. McCaw

• Citation: 133 P. 469,74 Wash. 335
• Parties: TOON v. McCAW et al.
• Decision Date: 15 July 1913
• Court: United States State Supreme Court of Washington

133 P. 469

74 Wash. 335

TOON v. McCAW et al.

Supreme Court of Washington

July 15, 1913

Department 1. Appeal from Superior Court, Mason County; Ben Sheeks Judge.

Action by P. L. Toon against W. O. McCaw, Thomas Willikson, and others. Judgment for the plaintiff, and the defendants Thomas Willikson and others appeal. Affirmed.

Frank Beam, of Aberdeen, for appellants.

Dan Pearsall and T. H. McKay, both of Aberdeen, for respondent.

GOSE J.

The plaintiff brought suit upon the following note: '$500.00. June 20, 1910. One year after date, without grace we promise to pay to the order of P. L. Toom five hundred and no-100 dollars in gold coin of the United States of America, of the present standard value, with interest thereon, in like gold coin, at the rate of ten per cent. per annum for date until paid, for value received. Interest to be paid at end of year and if not so paid, the whole sum of both principal and interest to become immediately due and collectible, at the option of the holder of this note. And in case suit or action is instituted to collect this note, or any portion thereof we promise and agree to pay, in addition to the costs and disbursements provided by statute _____ dollars in like gold coin for attorney's fees in said suit or action. Due June 20, 1911. At Aberdeen, Wash. No. 4. Aberdeen Tug Boat Co. Thos. Willikson, Cash Manley, Swen Johnson.' It is alleged in the complaint that the defendant Aberdeen Tug Boat Company, at the time of the execution of the note, was and is a corporation; that the defendant McCaw had been regularly appointed receiver for its property; that he had qualified and was acting as such receiver; that the defendants made and delivered the note on the day it bears date; and that it had not been paid. The defendants Willikson, Manley, and Johnson answered jointly, and alleged affirmatively that the note was drawn on the day it bears date by the bookkeeper for the defendant corporation at the request of its officers; that it was then presented to such officers for their signatures; that the defendant Willikson signed the note as president of the corporation; that the defendant Manley signed it as vice president, and Johnson signed it as secretary of the corporation; that the three named defendants directed the bookkeeper not to deliver the note until he had written the title of each of such officers after his name; that he was directed to write after each of said names the respective official titles of the answering defendants; that the consideration for the note passed to the defendant corporation, and was used by it in paying some of its outstanding indebtedness; that no consideration whatsoever passed to said defendants individually; 'that said note was understood by all of the parties thereto to be the note of said corporation, and the money was loaned on the credit of said corporation; that said defendants refused to indorse or sign said note in their individual capacity.' A general demurrer interposed to this defense was sustained. The defendants declined to plead further, and on motion of the plaintiff, judgment was entered in his favor against all the defendants. The defendants Willikson, Manley, and Johnson prosecuted this appeal.

The appellants thus state their contention: 'In the case at bar the signature to the note is certainly ambiguous. The signature might be interpreted to be that of the corporation alone, of the individuals alone, or of both the corporation and the individuals signing.' We cannot acquiesce in this view. Ambiguity cannot be created by pleading it. It must appear in the instrument itself. It will be observed that the defendants jointly promised to pay the note. There is nothing upon the face of the note to indicate that it was a note of the corporation only, or that it was other than the joint obligation of all of the makers. The language of the note is 'we promise to pay.' This language is repeated in reference to the attorney's fee. Counsel for the appellants have quoted rather extensively from Thompson on Corporations; but, as we read the references, the views of the author afford them little comfort. In volume 2, page 986, the author says: 'The general rule is that where an officer or agent executes a negotiable instrument in behalf of the corporation, but neither in the body of the note nor in his signature is the manner or capacity in which he acts shown, then he is personally liable.' Any other rule would destroy the stability of written contracts. There is no language in the note which raises even a slight ambiguity or creates any doubt as to the meaning of the instrument, or that...