Weeks v. Bussell

• Decision Date: 13 March 1894
• Citation: 36 P. 265,8 Wash. 440
• Parties: WEEKS v. BUSSELL. [1]
• Court: Washington Supreme Court

36 P. 265

8 Wash. 440

WEEKS v. BUSSELL. ^[1]

Supreme Court of Washington

March 13, 1894

Appeal from superior court, King county; T. J. Humes, Judge.

Action by W. C. Weeks against Virginia Bussell and E. L. Gustin. From a judgment for plaintiff, defendant Bussell appeals. Reversed.

Benson & Morris, for appellant.

Wilshire & De Steiguer, for respondent.

DUNBAR C.J.

Respondent brought this action at law against appellant and against one E. L. Gustin, and recovered a judgment against both for the amount claimed in the complaint. Defendant Gustin failed to appear in the case, and her default was duly entered. She does not join in this appeal. The action was brought on a promissory note executed by appellant and said Gustin, which was drawn in favor of, and was delivered to, respondent. Respondent's complaint is in the usual form, and sets out the note in full. The answer of the appellant alleges that she executed and delivered the promissory note aforesaid, as an accommodation note, to the plaintiff, and without consideration; that she so executed and delivered the said note for the sole purpose of enabling the plaintiff to borrow money thereon for his own use and benefit, and for no other purpose whatever. The court, among other things, instructed the jury as follows: "The court further instructs you that if you find there was a consideration moving to E. L. Gustin for the giving of this note, or to this defendant who is defending here, Mrs Bussell, you will find for the plaintiff; or if you find there was a consideration moving to only one, Mrs. Gustin, if you find she was indebted to the plaintiff for goods sold and delivered, as plaintiff claims in this case, it is immaterial whether the defendant Bussell also was indebted for those goods. The question is, was there a consideration moving to the defendants, or either of them, for the execution and delivery of this note? If there was, find a verdict for the plaintiff." This instruction was duly excepted to by the defendant Virginia Bussell, and is alleged here, among other things, as error. This instruction was so manifestly erroneous that discussion seems to be almost superfluous. The main question at issue, so far as the defense of appellant was concerned, was whether or not she was an accommodation indorser. There was competent testimony introduced which tended at least to show that her indorsement was an indorsement of that character only, and...