Denny v. Sayward

Citations

• 10 Wash. 422
• 39 P. 119
• 1894 Wash. LEXIS 238

Syllabus

<p>PRINCIPAL AND SURETY — STATUTE FOR PROTECTION OF SURETIES— RES JUDICATA — JUDGMENT AGAINST SURETY WITHOUT SERVICE ON PRINCIPAL — ACTION BY SURETY — VARIANCE — SUIT BY EXECUTOR AFTER FINAL ACCOUNTING — LIMITATIONS!</p> <p>The statute permitting sureties, in an action against them and their principals, to have the question of suretyship adjudicated, is not a limitation of their rights as existing before its enactment, but is intended as an additional and more complete remedy than existed under the common law.</p> <p>The doctrine of res judicata does not apply to an action brought by a surety to recover from his principal such portion as has been paid upon a judgment obtained against them in a former action, in which the principal was a defendant, but in which no judgment had been taken against him for the reason that he was a non-resident of the state and did not appear in the action.</p> <p>Answers to interrogatories propounded to a defendant, under Code Proc., §§ 1660-1665, may be put in evidence, and, as evidence, are subject to contradiction.</p> <p>Where one has transferred all his sawmill business and timber lands to another, becoming the agent of the latter in conducting the mill business, it being within the scope of his authority to secure logs for its use, a contract entered into by the agent, whose primary object is to secure a large quantity of logs at a cost not in excess of the market price, is binding on the principal, although one of the incidental provisions of the contract is, that a certain portion of the purchase price shall be applied upon a judgment obtained against the agent, while he was conducting the business prior to its transfer to his principal.</p> <p>Where a judgment has been rendered against sureties without fault on their part and after a defense made in good faith bv them, such judgment will be conclusive in an action by them to recover money which they have paid on account thereof, if the principal had knowledge of the action, eve