Fick v. Jones

As stated in the majority opinion, respondent sued upon the check referred to therein. Appellants did not demur to the complaint, but answered, admitting the execution and delivery of the check February 18, 1929, and that the check was presented to appellant J. Will Jones during the month of July, 1933, and payment thereof demanded, such payment having then been refused. By way of an affirmative defense, appellants pleaded payment of the "check and the debt evidenced thereby."

Upon the trial, the check was offered in evidence and received without objection, respondent's evidence being to the effect that the amount thereof was due to her, she testifying also that the check had been, during the month of July, 1933, presented to appellant J. Will Jones, who refused to pay the same. On cross-examination, respondent stated that the check had never been presented to the drawee bank. On re-direct examination, respondent testified that the check had been mislaid, and that the failure to present the check for payment at an earlier date was due to oversight. At the close of respondent's case, both sides rested, and appellants then "challenged the sufficiency of the evidence to warrant a judgment for plaintiff." Counsel for both parties waived argument, and the court thereupon rendered judgment in respondent's favor.

It affirmatively appears, therefore, that appellants failed to present any argument in support of their challenge, and did not call the attention of the court to the point upon which they now rely and upon which the majority hold that they should prevail, to-wit, that the check was never presented to the drawee bank for payment. Respondent's failure to present the check to the bank resulted in no loss to appellants. They cannot, therefore, prevail upon the theory that they have suffered damage by reason of respondent's failure to present the check to the bank. Appellants' defense, as here urged, is highly technical, and they should not prevail thereon unless the law clearly requires such a holding. In my opinion, no such ruling is required or even proper.

Appellants did not demur, but answered. By their answer, they admit the presentation of the check to them and their refusal to pay. They affirmatively pleaded payment of the check and the debt evidenced thereby. Upon these pleadings and the evidence disclosed by the statement of facts, in my opinion, the trial court properly rendered judgment in respondent's favor. Appellants admitted the drawing of the check and that the same was based upon a valid consideration. In view of the lapse of time between the drawing of the check and its presentation to appellants, their refusal to pay the same, in the absence of any request on their part that the check be presented to the bank, constituted a repudiation of the check, and justified respondent in bringing this action. Appellants' answer merely made the situation clearer in respondent's favor, and when appellants abandoned their affirmative defense by failing to offer any evidence in support thereof, the state of the pleadings and the evidence justified the judgment which was rendered.

There is another reason why respondent should prevail here. Appellants failed to call the attention of the trial court, by argument in support of their challenge to the sufficiency of the evidence, to the point upon which they now rely. The challenge was general and not specific. While it is true that respondent could not have amended her complaint by alleging that she had presented the check to the bank, she might have amended by alleging that appellants had, by their conduct or words, waived such presentation. What the facts were in connection with this phase of the case, we do not know. Had appellants fairly stated their position, respondent might well, by amendment and the introduction of further evidence, have met the point upon which appellants now rely. Such an argument as that now made by appellants cannot be presented for the first time in this court. In the case of Wappenstein v. Aberdeen, 39 Wash. 189,81 P. 686, this court said:

"This is an appeal from a judgment awarding the respondents damages caused their property by reason of a change in the grade of the street fronting thereon, made under the authority of the appellant city. The assignments of error raise but one question, namely, does the complaint state facts sufficient to constitute a cause of action. It is said that the complaint fails to state a cause of action because it fails to allege that the property had been improved with reference to the established grade. But if it be the rule that a municipality may make as many changes in the grade of a street as it pleases without subjecting itself to damages at the suit of property owners owning property fronting thereon, so long as the property has not been improved with reference to an established grade, and that a complaint asking for damages which fails to allege improvement of the property with reference to the established grade is defective, we think the appellant is estopped from urging the question on this appeal. The objection is raised for the first time in this court, and, as the defect is one that could have been cured by amendment, it was waived by answering over and going to trial on the merits.

"The judgment is affirmed."

See, also: Bishop v. Averill, 17 Wash. 209, 49 P. 237, 50 P. 1024; Rose v. Pierce County, 25 Wash. 119, 64 P. 913;Wild Rose Orchard Co. v. Critzer, 79 Wash. 462, 140 P. 561;Cook v. Washington-Oregon Corp., 84 Wash. 68, 146 P. 156, 149 P. 325; Bishop v. Ryan Const. Co., 106 Wash. 254,180 P. 126; Koboski v. Cobb, 161 Wash. 574, 297 P. 771. In the case of Allen v. Blyth, 173 Wash. 409, 23 P.2d 567, this court said:

"A party moving for a nonsuit or for a directed verdict should state the grounds relied upon with such particularity as to point out the defects in the plaintiff's case, if any.Thompson-Spencer Co. v. Thompson, 61 Wash. 547, 112 P. 655;Idaho Trust Co. v. Eastman, 43 Idaho 142, 249 P. 890;Rovegno v. San Jose Knights of Columbus Hall Ass'n., 108 Cal. App. 591,291 P. 848."

In 3 C.J. 705, § 599, the rule is laid down as follows:

"As a rule a party cannot for the first time on appeal raise the objection that no demand was made before the suit was brought or that a demand made was insufficient; that a claim against the estate of a deceased person was not presented to the executor or administrator for allowance or that the demand was insufficient; that a claim against a municipal corporation or county was not presented to the proper officer or officers, as required by statute, for allowance or payment; that notice of an injury was not given to a city or other municipality before bringing suit therefor, or that a notice was insufficient; that there was no tender or an insufficient tender; or that plaintiff has otherwise failed to comply with or perform a condition precedent to his right to maintain the action.

"In a suit against indorsers, where the defense of want of presentation and notice of nonpayment is not raised at the trial, it cannot be considered on appeal."

In 1 Bancroft Code Practice Remedies, p. 774, § 522, the rule is stated as follows:

"A nonsuit upon the failure of a plaintiff to prove his case may properly be granted only upon the motion of the defendant. The motion therefor must point the attention of the court and counsel to the precise grounds upon which it is made, so that, if possible, the objection may be obviated by additional evidence. .. . It is not sufficient to state as grounds merely that plaintiff has failed to prove any negligence of defendant or any damages, that plaintiff has failed to prove a sufficient case; that plaintiff's evidence did not show a ``prima facie case,' or, it has been held, that it showed his own contributory negligence."

In the case of Prichard v. Strike, 66 Utah 394,243 P. 114, 44 A.L.R. 1348, the supreme court of Utah, in discussing a somewhat similar question, used the following language:

"Error is also assigned on the alleged insufficiency of evidence to show the giving of notice of dishonor by presentment, demand, and nonpayment. The assignment is untenable for several reasons. First, no such an issue was tendered or raised by the pleadings; no such claim was made by the appellant during the trial; neither party requested the court to charge, nor did the court charge, on any such subject; nor was there any exception taken or complaint made of the court's failure or omission to so charge; nor was there any complaint made or exception taken to the portion of the court's charge that the only issue submitted to the jury was with respect to the indorsement and the circumstances under which it was made."

The supreme court of California, in the case of Inderbitzenv. Lane Hospital, 124 Cal. App. 462, 12 P.2d 744,13 P.2d 905, used the following language:

"A motion for nonsuit must state the grounds with sufficient particularity to direct the attention of court and counsel for the plaintiff to the particulars in which the evidence is insufficient so as to enable counsel to supply the omitted evidence if that can be done (Moore v. Steen, 102 Cal. App. 723,725, 283 P. 833; Moore v. Moffatt, 188 Cal. 1, 5,204 P. 220; Brown v. Sterling Furniture Co., 175 Cal. 563, 166 P. 322;Palmer Rey v. Marysville Democrat Pub. Co., 90 Cal. 168,27 P. 21); . . . This is for the sufficient reason that if the defect had been clearly pointed out plaintiff might then have cured it by the introduction of additional evidence. It is clear that the specification ``that the allegations of the second amended complaint have not been sustained' was altogether too general to support the order granting the nonsuit. (Dawson v.Tulare Union High School, 98 Cal. App. 138, 140, 276 P. 424;Henley v. Bursell, 61 Cal. App. 511, 215 P. 114.)"

A similar rule is laid down by the California court in the case of Millar v. Millar, 175 Cal. 797, 167 P. 394, Ann. Cas. 1918E 184. The California cases of Miller v. Luco, 80 Cal. 257,22 P. 195, and Moore v. Moffatt, 188 Cal. 1, 204 P. 220, are also in point.

In my opinion, the judgment of the trial court should be affirmed, and I accordingly dissent from the conclusion reached by the majority.

TOLMAN and HOLCOMB, JJ., concur with BEALS, J.