W. W. Kimball Co. v. Cockrell

• Decision Date: 14 December 1900
• Citation: 63 P. 228,23 Wash. 529
• Parties: W. W. KIMBALL CO. v. COCKRELL.
• Court: Washington Supreme Court

63 P. 228

23 Wash. 529

W. W. KIMBALL CO. v. COCKRELL.

Supreme Court of Washington

December 14, 1900

Appeal from superior court, Spokane county; Leander H. Prather Judge.

Action by the W. W. Kimball Company against H. N. Cockrell, doing business as H. N. Cockrell & Co. From an order denying a new trial, and from a judgment in favor of defendant, plaintiff appeals. Reversed.

Jerry E. Bronaugh, for appellant.

ANDERS J.

This is an action on a guaranty. The plaintiff, in its complaint alleges that on or about November 3, 1893, one T. C. Griffitts executed and delivered to defendant (respondent here) a certain contract in writing, wherein and whereby said Griffitts promised to pay the defendant the sum of $400 in certain installments, payable at certain times with interest thereon from maturity at the rate of 10 per cent. per annum; that for value received the defendant, H. N Cockrell, doing business as H. N. Cockrell & Co., assigned said contract to the plaintiff' (appellant), and by indorsement on the back of said contract in writing guarantied the payment of the obligations therein set out when due, with interest, waiving notice of nonpayment, demand, and protest, and suit against the signer. It is further alleged that only a certain designated part of said sum so promised in said contract was paid, and plaintiff demands judgment against said Cockrell by reason of said guaranty, for the sum alleged to be due and unpaid. The defendant, in his answer, denies the execution of the contract by Grifftts, its indorsement by himself, and that there is anything due thereon; and by way of first affirmative defense alleges that the guaranty mentioned in the complaint was and is wholly without consideration, illegal, and void. And for a further affirmative defense the defendant sets forth a copy of the contract mentioned in the complaint, and alleges, in effect, that the plaintiff herein sued the said T. C. Griffitts upon said contract, and attempted to foreclose the same upon his piano therein mentioned, and such proceedings were had that final judgment was rendered in the superior court in favor of said Griffitts and against said plaintiff, and that said judgment was never appealed from by said plaintiff, and remained in full force and effect, and all of the questions involved in said obligation and contract were finally determined and adjudged in favor of the said Griffitts and against said defendant. The plaintiff, in its reply, denies each and every allegation of the defendant's first affirmative defense, and alleges affirmatively that plaintiff took said guaranty from the defendant in payment of the purchase price of the piano described in the contract in defendant's answer, which piano was sold by plaintiff to defendant; and for a further reply the plaintiff denied generally the allegations of the second paragraph of defendant's second affirmative defense. This latter denial controverts only that part of defendant's second affirmative defense which relates to the alleged suit by plaintiff against Griffitts. Upon the issues raised by the pleadings the cause proceeded to trial, and at the close of the plaintiff's evidence the defendant, pursuant to section 4994, Ballinger's Ann. Codes & St., challenged the sufficiency of the evidence, which challenge the court sustained, and thereupon discharged the jury. A motion for a new trial was denied, and the court, over the objection of plaintiff, entered judgment that the plaintiff take nothing by said suit, and that defendant do have and recover from plaintiff his costs, taxes at $23. From this judgment the plaintiff has appealed.

We have not had the benefit of an argument on behalf of the respondent, as he has filed no brief in this court. Upon the trial the appellant offered in evidence the deposition of one Charles C. Dunbar, taken by a notary public in the city of Chicago, in pursuance of a commission granted by the superior court in and for Spokane county. This deposition was taken upon written interrogatories attached to the commission. Error is assigned on the refusal of the court to admit interrogatories numbered 4, 5, 6, and 7, and the answers thereto, in evidence. Interrogatories numbered 1, 2, and 3 and the answers given by the witness, were admitted in evidence, and in response to the questions therein propounded to the witness he testified that he resided in Chicago, and was bookkeeper for the W. W. Kimball Company, and had been in their employ 16 years, and had general...