Way v. Lyric Theater Co.

Gose, J.

This is an action by the plaintiff as an indorsee, to recover upon four promissory notes, each of which is in the following form, except as to the date of maturity and with the further exception that one of the notes is drawn for $50:

Spokane, Washington, Sept. 7, 1911.

Pour months after date we promise to pay to the order of American Manufacturing Company $100.00 at our place of business, for value received. ' . Lyric Theater Company

Bert Muma

Theodore Peterson

James Anderson

6. H. Mueller.

The defendants other-than the Lyric Theater Company, a corporation, answered jointly, alleging, in substance, (a) that the defendants husband executed the notes as officers and trustees of the corporation defendant, and for and on its behalf, and not otherwise, and that no consideration moved to them personally; and (b) that the respective communities received no benefit from the transaction. A judgment was entered against the defendant husbands personally, and against the several communities. This appeal followed.

The court made five separate findings of fact, each of which bears a distinctive number. At the foot of the findings and conclusions of law, the appellants noted the following exception: “The defendants except to the above findings of fact and conclusions of law by their attorney . . . ., which exception is allowed.” The exception, under the repeated and uniform decisions of this court, is not sufficient to entitle the appellants to a review of the evidence. Pease v. Clayton, 62 Wash. 26, 112 Pac. 943, and cases there cited and reviewed.

Including other findings not here especially pertinent, the court found:

“(2) That heretofore, to wit, on the 7th day of September, 1911, the defendants herein, being indebted to the American Manufacturing Company in the sum of $350, as evidence thereof made, executed, and delivered to the American Manufacturing Company in the City of Lexington, Tennessee, their three certain promissory notes of even date for $100 each, due respectively one, two and four months after date, and at the same time and for the same consideration, made, executed, and delivered their one promissory note for $50 due three months after date. . . . (3) That said notes were executed in consideration of the sale and delivery by said American Manufacturing Company to said Lyric Theater Company (of which company the said Bert Muma, Theodore Peterson, James Anderson and G. H. Mueller were at the time of the execution of said notes stockholders) of one automobile; that said automobile was purchased for the use and benefit of said corporation and for the use and benefit of the stockholders thereof, and said auto was delivered to and received by said corporation.”

The findings support the judgment.

We have held that a note given by a married man who is a stockholder in a corporation, for the benefit of the corporation, is presumed to evidence a transaction for the benefit of the community. This presumption might be rebutted by showing that the corporation stock was the separate property of the husband. Horton v. Donohoe-Kelly Banking Co., 15 Wash. 399, 46 Pac. 409, 47 Pac. 435.

It is contended that the court rejected evidence showing that the appellants other than the corporation executed the note in their official capacity only, and hence incurred no liability either separate or community. The rule is that, where the note purports to be the joint or joint and several obligation of a corporation and certain individuals, the latter cannot show that it was intended to create an obligation against the corporation only. Toon v. McCaw, 74 Wash. 335, 133 Pac. 469. In that case, we said:

“The note imports a joint obligation of the appellants, and they have sought to plead and prove that, while they apparently executed the note in their individual capacity, they intended in fact to execute it as the note of the defendant corporation only. This would be to create an ambiguity where none exists and to make for the parties a contract which they did not make for themselves.”

The appellants complain that they were not permitted to show that the notes did not evidence a community transaction. On the contrary, they proved affirmatively that the automobile, which represented the consideration for the notes, was purchased to be offered as a prize to attract patronage to the theater and thereby increase its earnings. These earnings would, of course, be to the advantage of all the stockholders, including the communities composed of the stockholders and their wives, in the absence of a showing that the stock was the separate property of the husbands. The fact that no profit' resulted is immaterial. The test is, was the transaction carried on for the benefit of the community; not whether it resulted in a profit.

The judgment is affirmed.

Crow, C. J., Ellis, Main, and Chadwick, JJ., concur.