German American Bank v. Wright

Citations

• 85 Wash. 460
• 148 P. 769
• 1915 Wash. LEXIS 856

Syllabus

<p>Bills and Notes — Actions—Pleading and Proof — Variance. In an action to recover upon a bank check, in which the complaint tendered an issue of the unqualified ownership of the check and the answer pleaded that the check was held as collateral only, the quality of plaintiff’s possession, as the real issue, was presented by the pleadings, the answer supplying what the complaint lacked; hence evidence sustaining the answer instead of the complaint cannot be urged as a variance amounting to failure of proof, under Rem. & Bal. Code, § 1752, requiring courts to decide cases on their merits, disregarding all technicalities and considering all amendments which could have been made as made.</p> <p>Pleadings — Variance—Materiality. A variance is not material unless it actually misleads the adverse party to his prejudice in maintaining his action or defense on the merits, and the burden is upon him to show such fact.</p> <p>Bills and Notes — Holder in Due Course — Antecedent Debt— Statute. The holder of a bank check as collateral in part for an antecedent debt, is a “holder in due course” under the negotiable instruments act (Rem. & Bal. Code, §§ 3415-3418) providing that every negotiable instrument is deemed prima facie to have been issued for a valuable consideration, that an antecedent or preexisting debt constitutes value, and that, where a holder has a lien on the instrument he is deemed a holder for value to the extent of his lien.</p> <p>Same — Holder in Due Course — Stale Check — Rights of Holder —Statute. Under Rem. & Bal. Code, § 3576, requiring a check to be presented for payment within a reasonable time or the drawer will be discharged “to the extent of the loss caused by the delay,” the taker of a stale check, although not an unqualified holder in due course, would be such holder, except in so far as the drawer of the check could show that he had been injured by the delay.</p> <p>Same — Holder in Due Course — Executory Contract — Consideration — Notice. Knowle