27 Wash. 111 | Wash. | 1902
The opinion of the court was delivered by
This suit was brought by respondent, a corporation, against Henry Cook and G. Kemp, to recover the price of a threshing machine and its equipments, and for certain mechanical work done thereon. It is alleged that the property sold consisted of “one 32-inch Columbia thresher; one 8-horse triple geared power, style F; two derrick forks, block and cable ropes and derricks, and other necessary implements that usually go with a threshing machine, such as forks,” — and that the agreed price therefor was $835.35, which is unpaid. It is further alleged that the firm of Zuelhke & Schroder were commonly known as
Respondent moves to dismiss this appeal on the ground that no notice of appeal was ever given as required by law. It appears from the record that the firm of Wright & Wright were the appellant’s attorneys of record in the court below during all the proceedings that were had prior to and at the time of entering judgment. The notice of appeal is signed by Merritt & Merritt as appellant’s attorneys, and the names of Wright & Wright do not appear therein. It is urged by respondent that under the terms of § 6503, Bal. Code, the notice must be signed by the attorney of record. It will be observed by reference to said section that it does not in terms say that the notice shall he signed hy the attorney of record, but that the party de
If, however, the party against whom an appeal is being taken gives no notice of a change of attorneys after judgment, then the appellant may serve notice of appeal upon the attorneys of record, as decided in Sturgiss v. Dart, 23 Wash. 244 (62 Pac. 858). The latter rule is manifestly just, and appellant should not be required to make inquiry of a respondent in order to ascertain if the attorneys of record are authorized to accept service after judgment. But when an appellant has actually changed attorneys after judgment, and by them has given notice of appeal, the respondent is thereby informed, and no inconvenience re-
At the trial there was testimony to the effect that appellant, Kemp, was present with defendant Cook, and talked with one Minnick, a representative of respondent, about purchasing a threshing machine; that it was usual when respondent made a sale, if the cash price was not paid, to require the purchaser to sign a written contract in relation to deferred payments; that Kemp objected to signing any written contract; that Minnick was not authorized to sell a machine without a written contract, and his superior, Mr. Glasgow, as the agent of respondent, was then in the East; that Kemp and Cook agreed to wait until Glasgow’s return ; that Minnick asked Kemp if, upon Glasgow’s return, any arrangement he should make with Cook would be satisfactory to Kemp; that Kemp said: “Anything Glasgow does with Cook will be all right with me, and I will stand
“If you find from the evidence in this case that defendant, Kemp at the time of their first conversation concerning the purchase of the machine told plaintiff’s agent, Minnick, that any contract that Cook might make with plaintiff through its agents, would be all right with him, and used such language as would reasonably give the plaintiff to understand that he would stand by such agreements or contracts relative to the purchase of such machine, then plaintiff would be justified in dealing with him, Kemp, by and through Cook, and the acts and contracts, if any, made by him for himself and Kemp would bind Kemp. Any orders or directions by Kemp to Cook would not affect plaintiff until such time as it, the plaintiff, had notice or knowledge. If Kemp authorized Cook to act for him, and plaintiff had knowledge of it, then he could have withdrawn such authority by notifying plaintiff of his desire to do so, but not by giving Cook alone the notice to that effect. Cook could not bind Kemp without authority from Kemp.”
Error is assigned upon the above instruction: First. For the reason that it is a comment upon the facts. We are unable to discover any words in the instruction that justify such criticism. The court simply told the jury that.
It is next assigned as error that the court rendered judgment for a sum in excess of the amount shown by the evidence, and in excess of the amount claimed to be owing.
“Question: What did the other amount to ? Answer: I could not -tell. I have not got it before me. Q. I will ask you if it is in the neighborhood of $120. A. Yes, sir. I know it amounted to over $100.”
It is true, he states no definite figures more than $100, but, in answer to the question whether it was in the neighborhood of $120, he replied in the affirmative. Ho objection was made to the form of said question or at all. In view of the fact that no evidence was introduced upon the part of the defense to show any other or different amount, we think the .jury were justified in finding the amount of that item to be $120. Adding that item to the $715 above malees $835. The machinist’s bill was alleged to be $65, but one member of the firm of machinists testified that it amounted to $60, and the other member put it at $63. Assuming the latter amount to be correct, and adding it to the sum before named, we have $898, — the utmost sum for
It is further urged that no proper assignment of the blacksmith account is shown which will authorize respondent to recover the amount of that item. There was oral testimony that the claim had been assigned to the respondent. Ho objection was made to the testimony. Ho motion was made to strike it, and there was no demand that the assignment in writing, if one existed, be produced. Without such objection, motion, or demand the evidence that the account was assigned stands in the record, and shows authority for respondent to recover the amount thereof. As before stated, the evidence did not authorize a verdict in excess of $898, and, since the prayer of the complaint only demands judgment for $895, the amount in excess of the last named sum must be remitted. The verdict and judgment were for $900.35, and the court below is instructed to remit from said sum the excess of $895. The amount is so small we do not think it calls for a reversal of the case, or that respondent should be charged with the costs of the appeal. The rule on appeal from justice courts to the superior court provides, that unless appellant recovers a “more favorable judgment” in the superior court than was recovered in the justice court, he shall not recover costs.” In Baxter v. Scoland, 2 Wash. T. 86 (3 Pac. 638), it was held that the expression “more favorable judgment” does not mean a few dollars or cents larger or smaller than the judgment recovered in the justice court, but one substantially more favorable, which is to be determined by the court in view of the circumstances of each particular case. While there is no statute directly applicable to such a case on appeal to this court, yet we think, by analogy, at least,
Reavis, C. J., and Fullerton, White, Anders, Mount and Dunbar, JJ., concur.