47 Wash. 62 | Wash. | 1907
This action was commenced on June 22, 1901, by John Collins, now deceased, against James P. Gleason, PI. S. Connor, and the Fidelity Trust Company of Seattle, a corporation, to compel the conveyance of certain lands in sections 25 and 30, township 21, north, range 5, E., W. M., in King county, Washington. The plaintiff in his amended complaint, dated October 2, 1902, alleged that Connor and Gleason were the president and secretary of the defendant corporation; that on or about January 22, 1901, an action, No. 31138, had been commenced by John Collins, as plaintiff, against the same defendants, to compel the defendants to transfer to him certain stock in the Fidelity Trust Company, or to reconvey certain property theretofore conveyed by him to such company; that the cause was afterwards settled, a written memorandum or agreement being made as follows :
“Seattle, Washington, May 3rd, 1901.
“Collins surrender 6240 shares, stock and trust certificate on Island County land.
“Fidelity Trust Company make special warranty to Collins for all real estate conveyed by him, to company, mortgage on tide land assumed by Collins and take property in mortgage. .Company also to convey to Collins one-half interest in Anacortes judgment. All monies now on hand belonging to corporation, except Colman money now in court, to go to plaintiff.
“Collins vs. Fidelity Trust Company to be dismissed, each party to pay own costs.
“Defendants to have Colman money now in court, and to have no other money from plaintiff.
“Defendants to pay no cost of receivership.
“Martin vs. Fidelity Trust Company to be dismissed without cost to either party.
*65 “Conner vs. Collins to be dismissed without cost to either party.
“Fidelity Trust Company vs. Colman to be dismissed without cost, and release of all claims against each other, growing out of any of said suits.
“Roberts & Leehey, Attorneys for Defendant.
“William Martin, Attorney for Plaintiff.”
that the plaintiff fully performed the agreement on his part; that the plaintiff had theretofore conveyed to the defendant company the land above mentioned, but that the defendant neglected and refused to reconvey it to him in pursuance of the terms of the written agreement. The defendants in their answer, after making certain denials, in substance alleged that the defendant company never authorized the written agreement; that it had never ratified the same; that the plaintiff was not entitled to any conveyance, and that the defendant company, by its answer, offered, by placing.all parties in statu quo, to rescind any action its officers had taken towards part performance of the written agreement. To this answer the plaintiff originally replied by denials only. On July 11, 1903, it having been suggested to the trial court that the plaintiff John Collins had died testate, an order was entered substituting Angie B. Collins, John Francis Collins, and R. L. Hodgdon, his executors and trustees, as parties plaintiff. On March 30, 1904, the substituted plaintiffs, with leave of court, served and afterwards filed a supplemental reply, in which they affirmatively alleged that theretofore, to wit, on May *7, 1901, John Collins, as plaintiff, instituted action No. 32452 aginst the Fidelity Trust Company of Seattle, one of the defendants herein, to compel specific performance on the part of the Fidelity Trust Company of the above contract, by requiring it to assign to Collins a certain lease from the state of Washington to the Fidelity Trust Company of a certain harbor area in King county, Washington, in said lease and in the pleadings of said action particularly described,
The appellants contend that the trial court erred in dismissing the action. The respondents contend, (1) that the act of the attorneys in making the memorandum of settlement was unauthorized; (2) that the same was never ratified by the Fidelity Trust Company; and (3) that, even if it was executed with full authority and subsequently ratified, this action cannot be maintained, as the appellants’ testator during his lifetime maintained one action to enforce the same agreement in which he obtained judgment, and that if the testator ever had any cause of action against the respondent company, as alleged in the complaint herein, the same was split by the former action, and the present one cannot be maintained.
The last point being conclusive of this case, the others will not be considered. It appears from the evidence, as well as the allegations of the supplemental reply, that action No. 32452 in the superior court of King county was instituted for
Appellants contend that the respondents cannot claim they are estopped by the former judgment, for the reason that the respondents did not plead such former judgment. The appellants themselves pleaded it in their supplemental reply, and when they did so, the respondents demanded judgment upon the pleadings. The former judgment had not been entered when the original answer was made herein. The facts were all before the court in this action, and we fail to see why it should not apply the law to the facts pleaded and admitted, whether pleaded by the respondents or the appellants. The appellants further contend that, at the time of the bringing of the former action, they had not discovered the failure of the respondents to convey the land now in dispute; that they
“But the appellants assert that the allegation to the effect that this tract was left out of their original complaint through accident and mistake was made advisedly, and, inasmuch as the respondents’ motion for judgment on the pleadings concedes it to be true, this fact alone is sufficient to show the inconclusiveness of the original judgment. This contention, also, mistakes the rule. If the appellants have, by accident or mistake on their part, failed to recover all of the land that they were entitled to recover, their remedy is not to sue for the omitted portion, but is rather to seek relief in the original action by opening up the judgment, amending their pleadings, and trying anew their rights to the property.”
The appellants in this action have not only elected to retain the original judgment and its fruits, but they have also
The judgment is affirmed.
Hadley, C. J., Fullerton, Rudkin, Mount, and Dunbar, JJ., concur.