35 Wash. 353 | Wash. | 1904
Appellant brought this action against respondents and alleged, that, at the times mentioned, the latter composed a copartnership, doing business as dealers in real estate, under the firm name of Cain Investment Company, with their principal place of business in the city of Port Angeles, Washington; that on the 23d day of January, 1900, and for many years prior thereto, appellant was a resident of the city of Boston, Massachusetts; that on said date respondent Cain was in said city of Boston, representing said firm in the business of selling real estate situate in the city of Port Angeles and vicinity, and was endeavoring to effect sales in Boston; that on said date appellant entered into a written agreement with said firm, the essential part of the memorandum of which is as follows:
“Port Angeles, Wash., January 23rd, 1900.
“Memorandum of Agreement by and between John Cain of Port Angeles, Washington, and Dr. Fred A. Cooke, of Boston, Mass. It is agreed between the parties hereto that John Cain will pay to Dr. Fred A. Cooke fifty per cent of all profits and commissions of such sales of Port Angeles real estate as said Dr. Cooke is instrumental in bringing about or assists said Cain in consummating.
“John Cain.”
The complaint then enumerates numerous sales alleged to have been effected through the assistance of appellant, stating the amounts for which the respective lots and parcels were sold. It is also alleged that the respondents represented certain amounts as the cost prices at Port Angeles and vicinity- of the various lots and tracts, which amounts are set forth in the complaint, and that appellant has been paid one-half the difference between
The respondents first answered the complaint separately, each denying all allegations of the complaint, and respondent Cain further answered affirmatively that, on or about said 23d day of January, 190(1, at Boston, he entered into an agreement with appellant, whereby he agreed to pay him fifty per cent of all net profits upon sales of real estate situate within the city of Port Angeles which appellant might assist in consummating. A list of lands and lots sold, located within the city of Port Angeles, is then set out, together with the alleged cost
Appellant demurred to the said affirmative defenses of respondent Cain’s first answer, and the demurrer was sustained. The purpose of mentioning these pleadings will more fully appear hereinafter. Respondents did not further plead affirmatively at that time, and the cause then went to trial before the court without a jury, upon the issues formed by the complaint' and the general .denials of the separate answers. At the conclusion of the plaintiff’s testimony, the court denied a motion for non-suit, and stated that, as the evidence then stood, the plaintiff was entitled to recover. This occurred on the 16th day of May, 1903, and, by reason of an approaching jury session, the court at this juncture postponed the further trial of the causé until June 5, 1903, at which time the trial was resumed. Before proceeding with the trial, however, respondents on the said day asked and obtained leave to file an amended answer. The permission was granted over the urgent protest of appellant.
The amended answer was jointly made by the respondents, and admitted that respondent Gain did, on or about January 23, 1900, subscribe and deliver the writing set forth in the complaint, but averred, that said memorandum of agreement was never acted upon by any of the parties, and that no sales were made thereunder; that said agreement was, in the month of October, 1900, by the
Appellant assigns as error that the court permitted the amended answer to be filed after the plaintiff had rested his case. This point is urged at great length in the briefs, and counsel manifest much earnestness in the
It will be remembered that, in respondent Cain’s first affirmative defense, an agreement was pleaded to the effect that the commissions were to be based upon an equal division of “net profits.” The court sustained a demurrer to that defense, apparently, from what the record discloses, upon the theory that the agreement named in it was the same as that set out in the complaint, inasmuch as the date laid for it was the same as that alleged in the complaint. It seems to us, however, that the legal
We make these observations by way of trying to make it clear that the first verified answer is not, in its legal effect, necessarily inconsistent with the last answer, wherein it is specifically averred that ihe agreement evidenced by the written memorandum was rescinded by a subsequent oral agreement. That being true, and it having already appeared in the testimony that respondents claimed that such rescission had been made about nine months after the date of the written memorandum,
The testimony concerning the mistake, in its inception, to which we refer, was given by the two respondents, and by two of their counsel, Judge McClinton and Mr. Ritchie, who represented respondents at the beginning of the litigation. Each of these witnesses testified that the, respondents, at all times, including their first interview with counsel, stated the facts about the subsequent oral agreement and their claim that all the property was sold under it. Just how the error in date, and the failure to more specifically state the terms of the new contract, occurred, counsel were unable to say, but all agreed that counsel had drawn the answer under some misapprehension, and that a mistake had manifestly been made. Mr. Cain stated that he did not observe the error in the date, and, not knowing the legal effect of the answer, relied upon counsel therefor, and verified the pleading.
In view of the existence of all these circumstances, We think good cause appeared in the record by way of sworn
Errors are assigned upon the rejection and introduction of certain testimony. We do not believe the rejection of testimony became prejudicial, in view of evidence that was admitted, and we thirds: no good purpose will be served by a detailed discussion of it. Keferring to testimony which it is claimed was erroneously admitted, it is sufficient to say that this court has often held that, in a trial de novo, it will not disturb findings of the trial court merely because immaterial or incompetent testimony may have been admitted, when, in its opinion, there is sufficient competent testimony to support the findings.
It is next vigorously urged that certain of the material findings are not supported by the evidence. Both respondents testified, in support of the facts alleged in the amended answer, to the effect that an oral agreement to rescind the written one was made in October, 1900, that a new oral one was then made, and that the sales were all made under the new agreement. Appellant denied that such new agreement was made. If the testimony of respondents is to be accepted as the truth, then appellant’s commissions have been fully paid by the $7,000, and more, already received by him. If, however, appellant’s testimony is correct, then he is entitled to recover
Appellant urges that the uncorroborated oral evidence of a party dhould not be held to be sufficient proof that a written contract has been orally rescinded. We find that a few of the cases practically go so far as to announce such a rule, but the language of most of the opinions is restricted to the statement, in effect, that the oral evidence necessary must be “clear, cogent, and convincing,” as against the party who denies it, and who seeks to sustain the writing. In Quinn v. Parke & Lacy Mach. Co., 9 Wash. 136, 37 Pac. 288, this court, in a majority opinion, used somewhat strong language declaratory of the rule contended for by appellant. The application of the rule so broadly stated seems not to have been required in that case, since the opinion states that there was no evidence to sustain the allegations concerning a rescission except the mere assertion of one that the machinery was not delivered under the written agreement, there being actually no testimony, by even a party, that an agreement to rescind was made. Appellant also cites the opinion of this court in Western Loan & Sav. Co. v. Waisman, 32 Wash. 644, 73 Pac. 703, where we refused to hold that a certificate of acknowledgment had been impeached by the uncorroborated testimony of two mortgagors. We, however, based the decision upon the view that a certificate of acknowledgment is a record of an official act of such dignity and importance that it ought not, for reasons of public security, to be held that it may be overcome by the mere uncorroborated testimony of an interested party.
Were we now confronted with a case with no corroboration whatever to support the testimony of parties, we
Fullerton, C. J., and Anders, Mount, and Dunbar, JJ., concur.