28 Wash. 482 | Wash. | 1902
Tbe opinion of the court was delivered by
— The complaint alleges that tbe defendants were co-partners under tbe firm name of Phillips-Judson Consolidated Excursions. At tbe time mentioned
The exceptions to the findings of fact taken by plaintiff have been examined in the light of the record, and we are not disposed to disturb them. Under the issues made upon the pleadings before us, it is not clear that the fifth finding of fact, relative to the agreement made between plaintiff and the manager of the company in June, 1900, is at all material. The case presented by the complaint and answer seems to have been a demand on certain written orders alleged to have been given by Haines, upon the defendant company, and accepted by Cronenwett, the manager. The testimony in the record tending to show a subsequent oral agreement in June, 1900, between plaintiff and Cronenwett, the manager, that plaintiff should be paid from moneys payable to Haines by defendants after an accounting between Haines and defendants, when Haines’ employment with defendants was terminated, is a novel departure from any issue suggested in the pleadings. But it is insisted by counsel for plaintiff that the presumption may exist here that the pleadings were amended so as to include another and distinct cause of action. It is not necessary, however, to inquire into the force of this contention, in view of the effect of the fifth finding of fact. Taking this finding with all intendments in its favor, we have the oral promise of Cronenwett to pay the debt of Haines in the event of certain contingencies, depending upon the termination of his employment. It would seem to fall directly within paragraph 2, § 4576, Bal. Code. See, also, Gilmore v. Skookum Box Factory, 20 Wash. 706 (56 Pac.
Affirmed.
Dunbar, Fullerton, Hadley, White, Anders and Mount, JJ., concur.