CHADWICK, J. The respondent brought this action to recover upon two promissory notes executed by the Shaughnessy Hill LeadSilver Mining Company, a corporation, E. M. Heyburn, and E. R. Ward. The complaint is the ordinary complaint upon a promissory note in the usual form. The corporation was not served, and did not appear in the action. E. R. Ward made default. E. M. Heyburn appeared, and, without denying the notes, al Negotiable Instruments Law (Laws 1899, p. 351, c. 149) § 58, subjects a negotiable instrument to the same defenses as if it were nonnegotiable when in the hands of any one other than a holder in due course. Section 29 (page 346) provides that an accommodation party is one who signs as maker, indorser, etc., without receiving value, intending to lend his name to another, and makes such party liable to a holder for value, though known to him to be only an accommodation party. Section 60 (page 351) provides that the maker of a negotiable instru-leged that they were given in payment for ment engages to pay it according to its tenor, and admits the payee's existence and his then capacity to indorse. Section 26 (page 346) provides that the holder is deemed one for value as to all parties who become such prior to the time value was given for the instrument if given at any time. Section 52 (page 350) makes one who takes an instrument in good faith and for value a holder in due course. By section 39 (page 351) every holder is deemed prima facie a holder in due course, and by section 192 (page 373), the person primarily liable is he who by the terms of the instrument is absolutely required to pay it. Held, that one apparently a joint maker of a note could not show as a defense under section 58 (page 351) in an action thereon by a holder for value that he signed as accommodation maker and surety, without consideration, which plaintiff knew, the defenses referred to in that section being only such as are permitted by the act or such equities as do not deny the tenor of the bill; a holder for value being in the same position as one in due course as to such defense. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. § 965; Dec. Dig. § 379.*] 5. BILLS AND NOTES (§ 140*)-ACTIONS-DEEXTENSION OF TIME-ACCOMMODA FENSES TION MAKER. An accommodation maker of a negotiable note, being primarily liable thereon, was not discharged by an extension of time to the principal debtor. certain mining machinery sold by the plain- Appellant argues that the court erred in Sustaining the demurrer to the answer, for the reason that he was an accommodation maker, which fact may be shown by parol; that he was bound only as a surety; and that the extension of time to the principal released appellant as such surety. Baldwin v. Daly, 41 Wash. 416, 83 Pac. 724, and Spencer v. Alki Point Transportation Co., 101 Pac. 6. JUDGMENT (§ 628*)-ACTIONS BARRED-AC-509, are relied upon to sustain this conten [Ed. Note. For other cases, see Bills and Notes, Cent. Dig. § 358; Dec. Dig. § 140.*] TION AGAINST JOINT DEBTOR. Where one of two joint debtors was without the state when a suit was brought against the other debtor, an unsatisfied judgment obtained therein would not bar a subsequent action upon the original claim against the debtor without the jurisdiction. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1144; Dec. Dig. § 628.*] 7. MORTGAGES (§ 563*) - PAYMENT-APPLICATION OF PROCEEDS OF SALE. A holder for value of promissory notes secured by mortgage could apply the proceeds of the sale of the mortgage property to the payment of any one or more of the notes he desired, and need not observe any equities between the principal debtor and an accommodation maker. [Ed. Note. For other cases, see Mortgages, Dec. Dig. § 563.*] tion. The latter case is not in point, for, For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes attachment plaintiff contends is necessary to the reasonable safe use of the hammer. Motions for nonsuit and for a directed verdict. made by defendant's attorney at the close of plaintiff's evidence and also at the close of all the evidence, being denied, the defendant appeals. The error assigned upon the court's disposition of these motions involves only the sufficiency of the evidence showing defendant's negligence in its failure to have the wire attachment on the hammer, to sustain the verdict. properly applied it will arrest time." Page that th seem ider is deemed prima in due course. ider that it was the object of instruments act to make such rtain and to speak the true conparties, thus saving the commerhe hazard of trumped up defenses l of trying out collateral issues such suretyship, etc., in case of suit, it would that we cannot reject the other sections were, and give effect only to section 58. The evidence conclusively shows that there was no wire attachment upon the pneumatic hammer attached to the rivet set to prevent it being thrown from the hammer with considerable force by the air in the event th air should be applied when the hammer not firmly pressed against a rivet or a surface. The air is applied in the or of the hammer by a trigger, used as on a gun. The air is by this plied when the hammer is pre rivet, and while so held and seems apparently safe. is applied and the hamme out being held against face that the danger the ejection of th of iron, much as gun. It is claim tached to t' common i tural irc will ar very r prev Wor pe It ece here, Our conclusion is further fortified by sec the appellanttion 192: "The person 'primarily' liable on By on the of the instrument is absolutely required to Car the respond an instrument is the person who by the terms that a release pay same. All other persons are 'secondarily' liable." Page 373. This section not only devisions based upon by the terms of the instrument binds himself Perceforth be resolv- fixes an absolute liability on the one who erwithstanding the con- without qualification, but furnishes a rule nt that the negotiable in- of evidence as well. Nor do we think that NBOY DI DO Way affects the rights or this construction renders section 58 meanhe reation of the original parties ingless. The defenses there referred to must To sustain his theory that be held to be only such defenses as are perappellant cites section 58 mitted by the act itself, or such equities as if it were nonnegotiable. tion, but it is a primary rule of construction | s09, it was held, in construing section 26, no he law: In the hands of any holder oth- | do not deny the tenor of the bill. Appellant instrument is subject to the same defenses as due course, he could not plead his present er Can a holder in due course a negotiable | admits that, if respondent was a holder in alone there is reason for appellant's conten- Hermann's Ex'rs v. Gregory (Ky.) 115 S. W. 1889 p. 351, c. 149, § 58. If this section stood question was presented, but in the case of islative intent may not be defeated. Look- to us, that one who had taken the note of ered with reference to others so that the leg- which might well have been done as it seems that one section of a statute must be consid-| particular reference being made to section 52, particular section, we find that it is also de- the maker to a bank was a holder for value, then, to the whole law and not to the another and had paid another note owing by "Sec. 29. An accommodation party is one be set up. A holder for value, therefore, and drawer, acceptor or indorser, without receiv- tion to challenge any defense based upon a who has signed the instrument as maker, a holder in due course, are in the same posiing value therefor, and for the purpose of collateral agreement or upon, equities existlending his name to some other person. Such ing between the makers by holding up the holder for value, notwithstanding such hold- nizes the several provisions of the law, and a person is liable on the instrument to a instrument itself. This construction harmoer at the time of taking the instrument knew makes effectual the purpose of the law to him to be only an accommodation party." Ing clared: "Sec. 60. The maker of a negotiable instrument by making it engages that he will pay it according to its tenor, and admits the existence of the payee and his then capacity to indorse." Page 351. When construed in the light of these sections, section 58 cannot be made to bear the construction put upon it by appellant. The law further provides: "Sec. 26. Where value has at any time been given for the instrument, the holder is deem and a defense of no consideration could not make negotiable instruments in fact what they have been only in theory under the law merchant a certain medium of commercial exchange. Our conclusion also harmonizes with the several decisions of this court which are collected in Anderson v. Mitchell, 51 Wash. 265, 98 Pac. 751, wherein we held, without reference to the negotiable instruments act, that one who signed as maker was bound by the terms of his obligation. Being primarily liable as an accommodation maker, appellant was not discharged by an exten ilbert on Commercial Paper, § 123f; | saw fit. Smythe v. New England Loan Com- *NEERING & MFG. CO. 1. HETETAN X 3 >. There is no error in the record, and the judgment must be affirmed. RUDKIN, C. J., and FULLERTON, GOSE, and MORRIS, JJ., concur. (56 Wash. 582) THOMPSON v. ALLEN et al. (Supreme Court of Washington. Jan. 8, 1910.) 1. MARITIME LIENS (§ 25*)-STATUTES-CON STRUCTION. it appeared that a chattel n given to secure the payhade by appellant, as well by the corporation afttion in its affairs had veral notes became ht in the state of Under Ballinger's Ann. Codes & St. §§ ty was then situ- 5953, 5954 (Pierce's Code, §§ 6077, 6081), maktel mortgage. Ap-ing boats, their tackle, etc., liable for work done or material furnished for their construction or sident of Montana, and repair, etc., one repairing an engine of another that action. A foreclosure and installing it in a boat of a third person sulted in a partial satisfaction for trial with a view of a sale of the engine, agment; the note of the corporation which sale was not consummated, resulting in the subsequent removal of the engine from the paid off, and a slight sum being cred- boat, does not acquire any lien on the engine. ed upon the obligations made by appellant. [Ed. Note.-For other cases, see Maritime It is urged that the notes sued on became Liens, Dec. Dig. § 25.*] merged in the judgment, and that an independent action cannot now be maintained. The fact that the appellant was a nonresident and made no appearance in that action takes this case without the rule relied upon by the appellant. "An unsatisfied judgment against one of two joint debtors does not bar a subsequent action upon the original claim against the other, where the latter at the time the first suit was brought was without the jurisdiction of the state and beyond the reach of legal service." 23 Cyc. 1209; 24 Am. & Eng. Enc. Law (2d Ed.) 760, 761; Black on Judgments (1st Ed.) vol. 2, § 771. 2. MARITIME LIENS (§ 74*)-ENFORCEMENT— linger's Ann. Codes & St. §§ 5953, 5954 (Pierce's 3. MARITIME LIENS ($ 74*)-ENFORCEMENT- the right to foreclose failed, the court could not Liens, Dec. Dig. § 74.*] Department 2. Appeal from Superior A defendant in an action to enforce a lien given by Ballinger's Ann. Codes & St. §§ 5953, Appellant also argues that he was released boats, their tackle, etc., liable for work done 5954 (Pierce's Code, $$ 6077, 6081), making by reason of the fact that he was deprived of or material furnished for their construction or the benefit of the security which was given repair, who urged that the court had no lawful by the maker at the time or after the notes right to render either a judgment of foreclosure against the property or a personal judgment were made. It was the recollection of appel-against him, did not waive his rights, and, where lant that a bill of sale was executed at the time the first notes were made and delivered. A careful reading of the testimony convinces us that the recollection of appellant in this regard is not borne out. It was not pleaded in his answer. The court made no finding that any instrument in the way of security other than the chattel mortgage was given, nor did appellant request any such finding. If it were true that a bill of sale had been given, it might be that appellant could claim credit for the reasonable value of the property as against a subsequent chattel mortgage. But there is no testimony to warrant us in holding that a bill of sale was in fact ever given. Whatever the hardship of the rule may be generally and particularly as applied to this case, respondent was not bound to observe any equities existing between the Shaughnessy Hill Company and appellant, but might apply the proceeds of the sale under the foreclosure to the payment of any one or all of the notes as it Action by Carl J. Thompson against A. J. Allen and another. From a judgment for plaintiff, defendant A. J. Allen appeals. Reversed and remanded, with instructions. Chas. F. Miller, for appellant. H. W. B. Hewen, for respondent. PARKER, J. This is an action to foreclose a lien claimed by plaintiff upon a boat and certain machinery consisting of a 15 horse power gasoline engine, alleged to be a part of her tackle, apparel, and furniture. The action is founded upon section 5953, Ballinger's Ann. Codes & St. (section 6077, Pierce's Code), which provides: “All steamers, vessels, and boats, their tackle, apparel, and furniture, are liable (3) for work done or •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes "Sec. 52. A holder in due course is a holder it in good faith and for value. "Sec. 59. Every holder is deemed prima facie to be a holder in due course. Page 351. and cases there cited. In Baldwin v. Daly | who became such prior to that time." Page the court said: "The ruling of the trial 346. court, to the effect that it is incompetent for one of two or more makers of a joint and several promissory note to show by parol that he is in fact only a surety, and that he was known to be such by the payee named in the note when the note was taken, is contrary to the ruling of this court in Culbertson v. Wilcox, 11 Wash. 522, 39 Pac. 954, and Bank of British Columbia v. Feffs, 15 Wash. 230, 46 Pac. 247." The cases upon which that statement was based were decided before the passage of the negotiable instruments act, which clearly and intentionally changed the law in that respect. Aside from this, it appears upon the face of the decision that such statement of the rule was dictum; for the opinion states: "It is apparent, however, that this question is not a material one here, unless it is to be held that the appellant Peter was entitled to show that the respondent had released him from liability on the note." And it was then held that a release by parol could not be shown. When we consider that it was the object of the negotiable instruments act to make such instrument certain and to speak the true contract of the parties, thus saving the commercial world the hazard of trumped up defenses or the peril of trying out collateral issues such as suretyship, etc., in case of suit, it would seem that we cannot reject the other sections and give effect only to section 58. Our conclusion is further fortified by section 192: "The person primarily' liable on an instrument is the person who by the terms of the instrument is absolutely required to pay same. All other persons are 'secondarily' liable." Page 373. This section not only fixes an absolute liability on the one who by the terms of the instrument binds himself without qualification, but furnishes a rule of evidence as well. Nor do we think that this construction renders section 58 meaningless. The defenses there referred to must be held to be only such defenses as are permitted by the act itself, or such equities as do not deny the tenor of the bill. Appellant admits that, if respondent was a holder in due course, he could not plead his present defense. We find no case in which this exact question was presented, but in the case of Hermann's Ex'rs v. Gregory (Ky.) 115 S. W. 809, it was held, in construing section 26, no But these cases must henceforth be resolved independently of all decisions based upon the law merchant, notwithstanding the contention of appellant that the negotiable instruments act in no way affects the rights or changes the relation of the original parties to the contract. To sustain his theory that it does not do so, appellant cites section 58 of the law: "In the hands of any holder other than a holder in due course a negotiable instrument is subject to the same defenses as if it were nonnegotiable. # "9 Laws 1899, p. 351, c. 149, § 58. If this section stood alone, there is reason for appellant's contention, but it is a primary rule of construction that one section of a statute must be consid-particular reference being made to section 52, ered with reference to others so that the legislative intent may not be defeated. Look ing, then, to the whole law and not to the particular section, we find that it is also declared: "Sec. 29. An accommodation party is one who has signed the instrument as maker, drawer, acceptor or indorser, without receiving value therefor, and for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party." "Sec. 60. The maker of a negotiable instrument by making it engages that he will pay it according to its tenor, and admits the existence of the payee and his then capacity to indorse." Page 351. When construed in the light of these sections, section 58 cannot be made to bear the construction put upon it by appellant. The law further provides: "Sec. 26. Where value has at any time been given for the instrument, the holder is deem which might well have been done as it seems to us, that one who had taken the note of another and had paid another note owing by the maker to a bank was a holder for value, and a defense of no consideration could not be set up. A holder for value, therefore, and a holder in due course, are in the same position to challenge any defense based upon a collateral agreement or upon equities existing between the makers by holding up the instrument itself. This construction harmonizes the several provisions of the law, and makes effectual the purpose of the law to make negotiable instruments in fact what they have been only in theory under the law merchant a certain medium of commercial exchange. Our conclusion also harmonizes with the several decisions of this court which are collected in Anderson v. Mitchell, 51 Wash. 265, 98 Pac. 751, wherein we held, without reference to the negotiable instruments act, that one who signed as maker was bound by the terms of his obligation. primarily liable as an accommodation maker, appellant was not discharged by an exten Being & Gilbert on Commercial Paper, § 123f; Vanderford v. Farmers' & Mechanics' Natl. Bank, 105 Md. 164, 66 Atl. 47, 10 L. R. A. (N. S.) 129, and note; Wolstenholme v. Smith, 34 Utah, 300, 97 Pac. 329; Cellers v. Meachem, 49 Or. 186, 89 Pac. 426, 10 L. R. 'A. (N. S.) 133. saw fit. Smythe v. New England Loan Company, 12 Wash. 424, 41 Pac. 184. There is no error in the record, and the judgment must be affirmed. RUDKIN, C. J., and FULLERTON, GOSE, and MORRIS, JJ., concur. (56 Wash. 582) THOMPSON v. ALLEN et al. (Supreme Court of Washington. Jan. 8, 1910.) 1. MARITIME LIENS (§ 25*)-STATUTES-CON STRUCTION. 2. MARITIME LIENS (8 74*)-ENFORCEMENT- [Ed. Note. For other cases, see Maritime Liens, Dec. Dig. § 74.*] 3. MARITIME LIENS (§ 74*)-ENFORCEMENT— On the trial it appeared that a chattel mortgage had been given to secure the payment of the notes made by appellant, as well as another note made by the corporation after his active participation in its affairs had ceased. After these several notes became due, an action was brought in the state of Montana, where the property was then situ- 5953, 5954 (Pierce's Code, §§ 6077, 6081), makUnder Ballinger's Ann. Codes & St. §§ ate to foreclose the chattel mortgage. Ap- ing boats, their tackle, etc., liable for work done pellant was a nonresident of Montana, and or material furnished for their construction or did not appear in that action. A foreclosure and installing it in a boat of a third person repair, etc., one repairing an engine of another and sale resulted in a partial satisfaction for trial with a view of a sale of the engine, of the judgment; the note of the corporation the subsequent removal of the engine from the which sale was not consummated, resulting in being paid off, and a slight sum being cred-boat, does not acquire any lien on the engine. ited upon the obligations made by appellant. [Ed. Note.-For other cases, see Maritime It is urged that the notes sued on became Liens, Dec. Dig. § 25.*] merged in the judgment, and that an independent action cannot now be maintained. The fact that the appellant was a nonresident and made no appearance in that action takes this case without the rule relied upon by the appellant. "An unsatisfied judgment against one of two joint debtors does not bar a subsequent action upon the original claim against the other, where the latter at the time the first suit was brought was without the jurisdiction of the state and beyond the reach of legal service." 23 Cyc. 1209; 24 Am. & Eng. Enc. Law (2d Ed.) 760. 761; Black on Judgments (1st Ed.) vol. 2, § 771. Appellant also argues that he was released by reason of the fact that he was deprived of the benefit of the security which was given by the maker at the time or after the notes were made. It was the recollection of appellant that a bill of sale was executed at the time the first notes were made and delivered. A careful reading of the testimony convinces us that the recollection of appellant in this regard is not borne out. It was not pleaded in his answer. The court made no finding that any instrument in the way of security other than the chattel mortgage was given, nor did appellant request any such finding. If it were true that a bill of sale had been given, it might be that appellant could claim credit for the reasonable value of the property as against a subsequent chattel mortgage. But there is no testimony to warrant us in holding that a bill of sale was in fact ever given. Whatever the hardship of the rule may be generally and particularly as applied to this case, respondent was not bound to observe any equities existing between the Shaughnessy Hill Company and appellant, but might apply the proceeds of the sale under the foreclosure to the payment of any one or all of the notes as it A defendant in an action to enforce a lien given by Ballinger's Ann. Codes & St. $$ 5953, 5954 (Pierce's Code, §§ 6077, 6081), making or material furnished for their construction or boats, their tackle, etc., liable for work done repair, who urged that the court had no lawful right to render either a judgment of foreclosure against him, did not waive his rights, and, where against the property or a personal judgment the right to foreclose failed, the court could not render a personal judgment. Liens, Dec. Dig. § 74.*] [Ed. Note.-For other cases, see Maritime Department 2. Appeal from Superior Court, Pacific County; A. E. Rice, Judge. Action by Carl J. Thompson against A. J. Allen and another. From a judgment for plaintiff, defendant A. J. Allen appeals. Reversed and remanded, with instructions. Hewen, for respondent. PARKER, J. This is an action to foreclose a lien claimed by plaintiff upon a boat and certain machinery consisting of a 15 horse power gasoline engine, alleged to be a part of her tackle, apparel, and furniture. The action is founded upon section 5953, Ballinger's Ann. Codes & St. (section 6077, Pierce's Code), which provides: "All steamers, vessels, and boats, their tackle, apparel, and furniture, are liable (3) for work done or For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |