Fosdick v. Government Mineral Springs Hotel Co. , 115 Wash. 127 ( 1921 )

Tolman, J.

This is an action on a promissory note, brought by respondent as plaintiff against the Government Mineral Springs Hotel Company, a corporation, as maker and against- the appellants as indorsers. From a judgment as prayed for, the indorsers have appealed.

Appellants demurred to the second amended complaint, on which the action was tried, upon the ground that it contained no allegation that the note had been presented for payment, or notice of dishonor given, and assign error upon the action of the trial court in overruling their demurrer.

This being an inland bill, no protest was necessary (Rem. Code, § 3508); and the allegations of the complaint, “This plaintiff caused due and regular demand for payment to be made upon the defendants and all of them,” imports a performance of the statutory requirements, aud was sufficient as against a general demurrer.

It is next contended that a nonsuit should have been granted because the respondent’s evidence failed to show a sufficient notice of dishonor and demand upon the indorsers. There was sufficient competent evidence to show that, prior to the execution of the note sued upon, and at the time the loan was originally made, a like note was executed and indorsed by the same parties, and at the time this original note became due, the present note was executed and indorsed, and was delivered to respondent in consideration of the surrender by him of the original note, it being practically admitted that at that time the corporation maker was unable to pay, and was to all intents and purposes insolvent. Under these conditions, it is plain that the new note was made, indorsed by appellants, and accepted by the respondent for the accommodation of the indorsers, and the statute, Rem. Code, § 3505, applies, which reads:

“When indorsers not entitled to notice. Notice of dishonor is not required to be given to an indorser in either of the following' cases: . . . (3) Where the instrument is made or accepted for Ms accommodation.”

It is also plain that the financial condition of the maker was, at all times during the life of the note sued upon, such as to negative the possibility of payment by it, and therefore the indorsers could not have expected that presentation to it would have availed anything; and Bern. Code, §3471, also applies:

“Presentation unnecessary to charge indorser, when. Presentment for payment is not required in order to charge an indorser where the instrument was made or accepted for his accommodation and he has no reason to expect that the instrument will be paid if presented. ’ ’

' The further point is made that the evidence showed respondent had assigned the note prior to the commencement of this action. We do not think the evidence susceptible of this construction. The instrument upon which appellants base this contention is in writing, is in evidence, and clearly states that the purported assignment was made for purposes of collection only, and the instrument as a whole shows that respondent did not, at any time, part with his interest in the note. Collection not having been made under the terms of the written instrument referred to, and the note being in the possession of respondent, with no evidence that he had ever indorsed it, title was presumptively in him.

We find no error and the judgment is affirmed.

Parker, C. J., Mitchell, Main, and Mount, JJ., concur.