Page images
PDF
EPUB

Action by Mary E. IIoeschler and others J. M. Geraghty and Alex. M. Winston, for against Frank H. Bascom and others. From appellants. P. F. Quinn, for respondent. a judgment in favor of defendants, plaintiffs appeal. Affirmed.

RUDKIN, J. This was an application for Belden & Losey, for appellants. Merritt,

a writ of mandamus against the city of SpoOswald & Merritt, for respondents.

kane and its treasurer. The facts upon

which the application was based are as folPER CURIANI. This is an action for the

lows: For some time prior to the 23d day reformation of a deed, for the eviction of of January, 1903, the relator was the owner the defendants from certain lots, for the res

of lot 1 of block 32 of Railroad addition to titution of said lots to the plaintiffs, and the city of Spokane. The city claimed liens for the quieting of title of said lots in plain

against the property for delinquent taxes for tiffs. The cause was tried by the court, and the year 1892, for the Howard street sewer facts were found and conclusions of law improvement, and for the Second street sewer made in favor of defendants, and judgment and grade improvement, the validity of which was rendered against the plaintiffs for costs. was denied by the relator. On the above Motion is made to strike the statement of

date an action was commenced in the sufacts, and to affirm the judgment, for the perior court of Spokane county by the city reason that no exceptions were taken to any

of Spokane against the relator and others of the findings of fact or conclusions of law

to foreclose the lien of the Second street sewmade by the trial court. It is not contended er and grade assessment. On the 18th day that all the findings of the court were errone

of June, 1904, a compromise was arranged ous; some of them were admitted by the through the attorneys representing the city pleadings, and some were stipulated to be and the relator, whereby it was agreed that, correct. The record shows that no excep upon the payment of the sum of $173.79 into tions were taken, and it is the settled law or court by the relator, the pending action this state that, where no exceptions are tak

should be dismissed, and that said sum should en to findings of fact, said findings are not

be received by the city in full payment and subject to review by the appellate court,

satisfaction of all liens and assessments but they will be considered admitted facts. against the property, and a written stipulaThere was some contention made by the ap

tion was prepared in conformity with this pellants in oral argument that some of the

agreement. On the same date an order was conclusions of law were not justified by the

entered by the court, reciting the stipulation facts found. But an investigation of the rec

and the payment of the $173.79 pursuant to ord convinces us that the conclusions of law its terms, and directing the city to cancel and the judgment entered were amply justi

upon its records all taxes and assessments fied by the facts found.

against the property. The city of Spokane The motion will be sustained, and the

and its treasurer have refused to cancel the judgment affirmed.

taxes and assessments as directed by the court. The answer admits all the allegations

of the petition, except the averment that the (44 Wash. 688)

taxes and assessments were invalid, and alSTATE ex rel. LIPPINCOTT V. CITY OF leges affirmatively that the corporation counSPOKANE et al.

sel of the city bad no authority to enter into

the stipulation or to confess the judgment as (Supreme Court of Washington. Dec. 13, 1906.)

rendered. The court sustained a demurrer to ATTORNEY AND CLIENT-AUTHORITY OF AT this affirmative defense, and the defendants TORNEY — SETTLEMENT BY STIPULATION

declining to plead further, a peremptory writ RATIFICATION. A city having brought action to enforce the

of mandate was directed to issue as prayed. lien of certain special assessments, it was agreed From this order the defendants have apby stipulation between the attorneys represent pealed. ing the respective parties that, on payment of

The appellants contend, first, that the court a certain sum, the action should be dismissed, and the sum received in full for all liens and was without jurisdiction to cancel taxes or assessments against the property. Held, that assessments not involved in the action in the city, having received the money paid under

which the foregoing stipulation was filed; an order of court based on such stipulation, could not afterwards deny the authority of the

and, second, that the corporation counsel bad officer making the stipulation, or of the validity no authority to enter into the stipulation, or of the judgment under which the money was to confess the judgment, in so far as taxes paid.

and assessments not involved in the pending Ed. Note.-For cases in point, see Cent. Dig.

action were concerned. We do not think that vol. 5, Attorney and Client, 88 151. 209.]

these defenses are available to the appellants Appeal from Superior Court, Spokane at this time. The appellants cannot claim County.

under the judgment, and in opposition to the Mandamus on the relation of J. B. Lippin- judgment. They cannot accept the fruits of cott against the city of Spokane and M. H. the stipulation, and, at the same time, deny Eggleston, city treasurer. From a judgment the authority of the officer who entered into in favor of plaintiff, defendants appeal, Af the stipulation. As soon as the city discover. firmed

ed that its corporation counsel had com

promised the taxes, entered into the stipula. verely frightened plaintiff Irene Stone, who tion, and confessed a judgment partly iu Its was then in a delicate condition, and caused favor and partly against its interest, two her to faint away and become unconscious, courses were open to it. It might refund the and her nervous system to be greatly shockmoney paid and move against the judgment, ed and injured, to such an extent as to cause or it might ratify and confirm what had been her to have a miscarriage shortly after. done. It could not ratify in part and reject The injuries flowing from such miscarriage in part; and, having received the money paid are set forth in the complaint. Judginent under the stipulation and judgment, it is was asked for $20,000 damages. At the close bound by its election, and will not now be

of the plaintiffs' testimony, the defendant heard to question either the authority of its challenged the sufficiency of the evidence, on officer or the validity of the judgment under the ground that it was not sufficient to juswhich the money was paid and received. tify their recovery. This motion was sus

There is no error in the record, and the tained, and judgment entered in favor of the Judgment is affirmed.

defendant for costs.

We have examined the testimony in this MOUNT, C. J., and FULLERTON, HAD

case, and, from such testimony, including the LEY, DUNBAR, and CROW, JJ., concur. medical expert testimony, we think the judy.

ment of the court must be sustained; that (44 Wash. 691)

there is no proof that the negligent acts of

the respondent were the proximate cause of STONE et ux. V. CREWDSON.

the miscarriage from which the alleged in(Supreme Court of Washington. Dec. 13, 1906.) | juries flowed. Without undertaking to reAPPEAL AND ERROR-REVIEW-DISCRETION OF produce the testimony of the doctors, who COURT-DIRECTION OF VERDICT.

were called by the appellants, and upon Where, on an issue as to whether defendant's acts were the cause of plaintiff's injuries,

whose testimony this case must be determinthe evidence showed that any one of many ed, it shows that any one of many intervenintervening acts might have caused the injury, ing acts and happenings might have caused and that the jury could not have determined

the same result. The time between the alleg. the proximate cause without entering into speculation and conjecture, the action of the court in

ed cause and the actual miscarriage-33 days directing a verdict for defendant would not be —was, according to the expert testimony, disturbed on appeal.

greatly in excess of the ordinary time in such [Ed. Note.-For cases in point, see Cent. Dig.

cases; and the answers of the physicians to vol. 3, Appeal and Error, $ 4024.]

questions propounded to them, which were Appeal from Superior

Superior Court, Spokane based upon the testimony, convince us that County; W. A. Haneke, Judge.

the jury could not have determined the proxAction by John Stone and another against | imate cause of the miscarriage without enterJames Crewdson. From a judgment direct- | ing into the realms of speculation, conjecture, ed in favor of defendant, plaintiffs appeal. | and guesswork, and this they are not emAffirmed.

powered to do, under the rule announced by Richardson, Roche & Onstine, for appel- | this court in Armstrong v. Town of CosmopHamblen, Lund & Gilbert, for re

olis, 32 Wash. 110, 72 Pac. 1039, Reidhead spondent.

v. Skagit County, 33 Wash. 174, 73 Pac. 1118,

and Stratton v. Nichols Lumber Co., 39 DI'NBAR, J. This action was brought by Wash. 323, 81 Pac. 831, 109 Am. St. Rep. 881. the appellants, husband and wife, to recover We are unable to discover that the court damages on account of personal injuries al- | committed any prejudicial errors in the adleged to have been suffered by one of the ap- | mission or rejection of testimony. pellapts, Irene Stone. The complaint alleged, The judgment is affirmed. in substance, the following facts: That on or about the 2d day of July, 1904, the defend MOUNT, C. J., and FULLERTON and ant came to the home of the plaintiff Irene HADLEY, JJ., concur. RUDKIN and CROW, Stone's father and mother in the town of

JJ., not sitting. Medical Lake, where she was visiting, and, without any reason or cause, wrongfully, wickedly, maliciously, and brutally assault

(44 Wash. 693) ed the plaintiff Irene Stone, and conducted

SCIIURRA V. BUFFALO-PITTS CO. himself in a boisterous, threatening, and noisy manner, violently shaking and swing-(Supreme Court of Washington. Dec. 13, 1906.) ing his hands and his fists in and around and PRINCIPAL AND AGENT-COMPENSATION or about the person and face of the plaintiff

AGENT-EVIDENCE-SUFFICIENCY. Irene Stone and her mother Mrs. Margaret E.

In an action by an agent for commissions

under a contract, whereby a machine company Olds, and swearing and cursing at them in a agreed to furnish the agent as many machines very loud and boisterous manner, heaping as he could sell prior to a certain date, the ppprobrious epithets upon them, and calling

company reserving the right to restrict the

agent to such number of machines as it might them vile names, which are specified in the be able to supply, evidence held sufficient to aucomplaint; and that by such action he se thorize the jury to find that the contract was

87 P.-60

extended beyond the date named, so as to entitle
him to commissions under the contract for sales
after that date.

Appeal from Superior Court, Spokane
County; Miles Poindexter, Judge.

Action by C. Schurra against the Buffalo-
Pitts Company. From a judgment in favor
of plaintiff, defendant appeals. Affirmed.

Danson & Williams, for appellant. Williain E. Richardson and Lawrence Jack, for respondent.

[ocr errors]

DUNBAR, J. This action is brought to recorer commissions alleged to be due respondent on sales made by the respondent while ating as the agent of the appellant. Three (uses of action are set forth in the complaint, all based on a contract of agency. The contract has at its top the following words: "For Season of 1901.” The first obligation of the appellant in the contract is as follows: "(1) To furnish to said party of the second part such number of engines, threshers, swinging stackers, horse pwers and their appurtenances [manufacturpind hy it, the Buffalo-Pitts Company] as the said party of the second part may be able to sell as its special agents, and in accordance with the terms stipulated herein, prior to November 1, 1901, the said party of the first part reserving to itself the right, in case it shall not be able to fill the orders of the said party of the second part, to restrict the said party of the second part to such number of machines as it may be able to supply.” The complaint shows that the second and third ("uses of action were for commissions on sales of agricultural implements for the benefit of defendant, after the 1st of November, 1901, viz., on the 17th day of January, 1902, and it is these causes of action that are contested by the appellant here. Appellant de murred to the complaint, which demurrer was overruled, objected to the introduction

but the respondent relied entirely on the stipulated compensation mentioned in the contract. If the contract had ceased to be in force by reason of the expiration of the time, then the respondent could not recover upon the second and third causes of action; if it was still in force, he could recover upon such causes of action, and the judgment is right. It will not be denied that the rule contended for by the appellant, that a contract of agency terminates with the expiration of the time set in the contract, is elementary, if no other circumstances are taken into consideration or brought to bear upon it. But a contract may be extended by the actions and agreements of parties to the contract, not incorporated in the contract itself. The appellant assigns error of the court in submitting the construction of the contract in question to the jury. Ordinarily the question of the meaning of a written contract is one of law for the court, and not for the jury. But this contract is not altogether unambiguous, and the time might be construed to be a limitation on the part of the appellant as to the machinery furnished. In any event, certain acts of the appellant were introduced in testimony, and the jury had the right to construe the contract, or to determine whether the contract was in force when the goods were sold with reference to said acts. We think the jury was justified in determining, from the testimony in this case, the letters introduced in testimony, the acceptance of the sales made by the respondent, and the appropriation by appellant of the benefit of said sales, that the contract was extended, that both parties treated the contract as extended until after these sales were made, and that the appellant ought to be bound by such extension. While, as we have indicated, the general rule is that a contract of agency ceases at the time prescribed in the agreement, yet it is equally well estab

of any evidence as to the sales made in 1902, lished that, if an agent employed at an

and, upon respondent resting, entered a chal

agreed price for a certain time continues in lenge to the sufficiency of the evidence, which

the same employment after the expiration of was also overruled. The same objection was

the term, without any new agreement, the made after all the evidence had been introdu- | presumption of law is that he continues at (ed, which was overruled. In its instructions

the original rate of compensation, and that the court left the construction of the con

there can be no recovery upon a quantum tract of agency and the matter of its dura

meruit. 1 Am. & Eng. Enc. Law, p. 1161, and tion to the jury, and the jury returned a

cases cited. It was also decided in Sines v. verdict for respondent in the sum of $635.

Superintendent of Poor, 58 Mich. 503, 25 N. Judgment was entered thereon, and appeal is

W. 485, that where, under a contract for a taken from such judgment.

year's services, the employé has gone on The pertinent contention in this case is from year to year, and at the end of the that the respondent was not entitled to re year is allowed to go on without objection, cover on the contract for merchandise sold a presumption arises which will warrant a after the alleged expiration of the contract jury in finding that the parties to the conin November, 1901. This action, it may be

tract have assented to its continuing in force conceded, is brought upon the contract, and

for another year. To the same effect are it may also be conceded that, where an action Tallon v. Grand Portage, etc., Co. (Mich.) 20 is brought on an express contract, recovery N. W. 878, and Tatterson v. Suffolk Mnfg. cannot be had on a quantum meruit.

No

Co., 106 Mass. 56. This rule, we think, is proof was attempted to be made of the rea a proper one, as its tendency is to insure jussonable value of the services upon the trial, tice.

[ocr errors]

We discover no reversible error on the part, the value thereof, and its value is alleged to of the court in the instructions given or in be $250. Joseph Hoeslich and Uncle Joe Dithe admission or rejection of testimony. The amond Broker, a corporation, were made dejudgment is therefore affirmed.

fendants. The complaint alleges that in Au

gust, 1904, the defendant Joseph Hoeslich MOUNT, C. J., and FULLERTON and was conducting a loan and pawnshop) busiHADLEY, JJ., concur.

ness in Seattle, under the name of "Uncle

Joe," and otherwise known as "Uncle Joe RUDKIN and CROW, JJ., not sitting. Loan Office"; that in said month the plain

tiff pawned with said Joseph Hoeslich the

ring in question, of which plaintiff was the (44 Wash. 668)

owner, and that he received thereon the sum ANDREWS v. UNCLE JOE DIAMOND of $50, with the understanding and agreeBROKER.

ment that the ring should be kept by said (Supreme Court of Washington. Dec. 12, 1906.) | Hoeslich until said sum was repaid, it being 1. APPEAL-DISMISSAL-APPEAL BOND.

further agreed that, if the sum was repaid Where the notice of appeal and appeal bond within one year, then in that case plaintiff are each dated and marked as filed July 16th,

should pay $15 for the use of the money, or while the service date on each is July 9th, the appeal will not be dismissed on the ground that $65 in all, but, if redemption was not made the bond was not filed within five days after within a year, then plaintiff was to pay $25 service of the notice.

for the use of the money, or $75 in all. It 2. SAME.

is also alleged that said Hoeslich then de. Where an action was brought against a corporation and an individual, and no appear

livered to plaintiff a receipt in writing, setance was made nor issue joined by the in

ting forth said agreement, which was numdividual, but judgment was rendered against the bered 9,011, and that entry thereof was made corporation, its appeal therefrom will not be in the books of said loan office; that theredismissed on the ground that the action is still pending in the lower court on issues joined by

after, on the 2d day of November, 1905, plainthe individual defendant.

tiff tendered the sum of $75 to defendant 3. FRAUDS, STATUTE OF-MEMORANDUM-SUF Joseph Hoeslich at said loan office and deFICIENCY.

manded the return of the ring, which was reA receipt given by a pawnbroker showing that he had received a diamond ring as security

fused. Further allegations are to the effect for a loan of $50 and that, if the loan were re

that, after the making of said pledge agreepaid within a year, $15 should be paid for the ment, the said Hoeslich incorporated said use of the money, and, if not within a year, loan office and business, under the name of $25 should be paid, was a sufficient memoran

"Uncle Joe Diamond Broker," such incorpodum within the statute of frauds. [Ed. Note.-For cases in point, see Cent. Dig.

ration being simply for convenience and for vol. 23, Frauds, Statute of, 88 239-241.]

the purpose of taking over and conducting the 4. CONTRACTS-VALIDITY-UNILATERAL AGREE

business theretofore conducted by Hoeslich; MENT.

that the business was so taken over, and that, An agreement whereby a pawnbroker ac in consideration for the transfer, the corpocepted a diamond ring as security for a loan

ration assumed and agreed to pay all indebtof $50 and providing that the pledgor should repay $65 if the loan were paid within a year,

edness incurred by said Hoeslich in conductor $75 if it were not paid within a year, was ing said business, and agreed to carry out and not invalid as being unilateral on account of perform all contracts as to pledged property its failure to fix the time within which the pledgor might redeem where the tender of $75

made by him. It is alleged that plaintiff also was made within a reasonable time after the tendered to said corporation defendant the expiration of a year and kept good.

sum of $ 75, and demanded the return of the 5. TENDER-KEEPING TENDER GOOD.

ring, which was refused, and that he now In an action to recover a diamond ring

tenders and pays the same into court. Issue pledged as security for a loan, it was necessary, to entitle the plaintiff to recover, to show, not

was joined by the corporation defendant, and only that he had tendered the amount necessary

a trial was had before the court without a to redeem and brought it into court, but also jury, resulting in a judgment against the corthat he had kept the tender good at all times.

poration for the return of the ring to plain[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Tender, $$ 55-58.]

tiff, or, in case return thereof cannot be had.

judgment is awarded to plaintiff for $20, Appeal from Superior Court, King County;

the value of the property. This appeal is Geo. E. Morris, Judge.

from the judgment. Action by Jacob Andrews against the Uncle

A motion has been made to dismiss the Joe Diamond Broker, a corporation, and an

appeal on the ground that no bond on appeal other. From a judgment in favor of plaintiff,

was filed within five days after service of the the defendant corporation appeals. Reversed

notice of appeal. The notice of appeal bears and remanded.

date July 16, 1906, and the file marks show John E. Humphries and Geo. B. Cole, for that it was filed the same day. The bond was appellant. E. J. Grover and Allen, Allen & also dated and filed July 16. The service Stratton, for respondent.

clause appended at the foot of both the notice

and bond, and signed by respondent's attorHADLEY, J. This is action in replevin to ney, bears date July 9th, which was seven recover the possession of a diamond ring, or days before the actual date of the notice and

bond. The argument is made that the service date of the notice shows that the appeal was taken on the 9th, and that, as the bond was not filed until the 16th, it was not within five days after the appeal was taken. The service date of the notice is manifestly an error, since it antedates the instrument itself. The same error appears upon the bond, and the record satisfies us that the appeal was not taken until the 16th, and the bond was both served and filed on that day, which was within time to perfect the appeal.

The motion to dismiss the appeal is urged upon the further ground that the appeal is from a judgment against one of the defendants only, and that the action is still pending in the lower court upon issues joined by the (lefendant Joseph Hoeslich. The record, however, shows that no appearance had been made and no issue had been joined by the defendant Hoeslich when the judgment appealed from was rendered and when the apDeal was taken. Under such circumstances appellant is entitled to prosecute the appeal from the judgment. It was a final judgment and the other defendant was not a party to it. The motion to dismiss the appeal is theretore denied.

Appellant assigns errors upon the court's findings as to the facts. No verbatim report of the evidence was made at the trial, but a narrative statement of the testimony has been embodied in the statement of facts and certified by the court. The findings made by the court substantially conform to the allegaticns of the complaint hereinbefore set out, and we think they are sufficiently supportnil by the evidence. We shall, therefore, not disturb such findings as were made by the court, but we shall hereinafter refer to a material fact upon which the court made no inling.

It is assigned that the court erred in its conclusion of law. It is argued that the con(•lusion was erroneous for the reason thai respondent cannot recover because of the statute of frauds. It is asserted that her was no agreement in writing, and that the ilgreement shown in evidence was not to be performed within one year. The complaint alleges that there was a written receipt given to respondent which stated the terms of the agreement. The court found that there was such, and we have said we think the evi(lence supported it. The objection raised on the ground of the statute of frauds is, therefore, not well taken.

It is further claimed that the contract wa:) unilateral, and could not have been enforced by appellant, for the reason that no definite time was fixed for its performance, and that l'espondent was given the right to redeem at any time after one year upon payment of $75. Whatever may be said as to the time within which appellant might have enforced its lien, it at least cannot be said that the contract gave it the right to withhold possession forever if tender were made within a reasonable time.

The ring was the property of respondent. The appellant had only a possessory lien thereon, and the tender of the amount of the lien was made soon after the expiration of a year. The contract was definite that redemption could be made within a year upon payment of $65, and after that time for $75. The tender of the latter sum was made within a reasonable time, and respondent thereupon became entitled to the possession. We think the contention that the contract was unilateral is not available to relieve appellant of liability if the tender was kept good.

Appellant argues that there was no evidence of the tender having been kept good. The complaint alleges a tender to appellant and a refusal to accept it before suit, and also that it was brought into court. The court expressly found that there was a tender made on November 2, 1905, which was before suit was brought, but did not expressly find that the tender either was or was not kept good. There was evidence of the tender before suit, but we find no testimony that it was brought into court and kept good. The statement of facts, however, contains the following recital: "The defendant admitted in open court that a tender as alleged in plaintiff's complaint had been made, and that it would be unnecessary to offer proof of that subject." The above admission relieved respondent of the necessity of making proof upon the subject of tender "as alleged in plaintiff's complaint," which covered both the original tender and the bringing of the same into court. It did not, however, extend to an admission that the tender had been kept good until the time of the trial. Respondent's right to maintain the suit and obtain the judgment depended upon whether he had tendered the $75, and had at all times kept the tender good. Appellant argues with apparent seriousness that the judgment is against it for the return of the ring or its value, and that respondent retains the $75. Such a result would be manifestly wrong, and the condition of the record is such that we cannot tell whether the tender has been kept good so that it has at all times been available to appellant or not. If it was kept good so that appellant could have drawn it from the registry of the court at any time, respondent should have seen that the record so disclosed. In the absence of such a showing the cause will have to be remanded for further proceedings.

The judgment upon the record before us is therefore reversed, and the cause remanded, with instructions to the trial court to vacate the judgment, and then proceed to ascertain if the tender in court was at all times kept good, and to enter an additional finding upon that subject. If it shall be found that the tender was kept good, then judgment shall be entered to the same effect as the former judgment. Otherwise judgment shall be entered dismissing the cause. Appellant is entitled to recover its costs upon this appeal.

« PreviousContinue »