59 Wash. 201 | Wash. | 1910
This is an appeal from the judgment of the court founded on a verdict of the jury, in an action brought by the respondent against the appellants as executors, to recover an alleged commission of ten per cent of the cost of construction of a large business block in the city of Seattle, as compensation for supervising the construction of said building. The complaint alleged, that Caroline Kline Gal-land, through her attorney in fact, Bonham Galland, employed the respondent to furnish estimates for the construction of the building according to certain plans; that these estimates were furnished, and aggregated a certain amount, which was afterwards reduced to a certain other amount; that Caroline Kline Galland, personally and acting through her duly authorized agent, Bonham Galland, employed the respondent to construct said building for the agreed compensation of ten per cent of the cost of construction; that shortly thereafter and on August 19, 1905, a written contract was entered into, by the terms of which the respondent agreed to furnish all material, pay all labor, and construct said building for the sum of $85,450; that about one week thereafter, by mutual consent between the respondent and Caroline Kline
The errors assigned are, that the court erred in admitting certain oral testimony of negotiations prior to the written contract, and erred in admitting the testimony in relation to the prior estimates, and in refusing to grant appellants’ motion for judgment non obstante veredicto, for the reason that there was no evidence showing, or tending to show, the authority of Bonham Galland, as agent, to abrogate the written contract for the construction of the building or to substitute a different and oral agreement therefor. As to the first assignment, a portion of the work was done before the written contract was entered into, and of course the testimony objected to was competent. So far as the second error is concerned, while we do not deem it material, yet in any event the main portion of the testimony in relation to the fact that the estimates did not include profit for the respondent was proven at length by the testimony of the respondent without objection on the part of the appellants, and the subsequent testimony objected to was merely cumulative.
The main question in the case is the one raised by the third
“Q. Mr. Galland, you are one of the defendants in this case? A. I am. Q. And one of the executors of the estate of your deceased wife? A. Yes, sir. Q. Are you the Bonham Galland who acted as the agent and attorney in fact for Caroline Kline Galland? A. I am. Q. In the transactions with Mr. Driver, the plaintiff? A. Yes.”
It is the earnest contention of the appellants that this testimony does not show, or tend to show, authority on the part of the agent Galland to abrogate the written contract and substitute therefor an oral contract in relation to the commission. But while the answers are somewhat general, it does show conclusively that he was acting as agent and attorney in fact for Caroline Kline Galland in all the transactions which were the subject-matter of the controversy, and the transactions concerning which he testified comprehended as much the abrogating of the written contract as they did the execution of the contract in the beginning, or the oral agreement made prior to the written agreement.
“Answering paragraph 4 thereof, they deny each and every allegation therein contained, and particularly that any other contract was made and entered into excepting the contract marked A and attached to the complaint.”
It was evidently not the intention to deny the agency of Bonham Galland, because that had not been denied; so that the matter which was intended to be denied, and which comes under the denomination “particularly denied,” was that portion of the paragraph in relation to the employment of plaintiff to construct said building upon the agreed compensation of ten per cent of the cost of construction. When viewed in connection with the answer as a whole and with the subse
“The defendants in their answer deny any agreement for the construction of said building on a percentage basis, but state that said contract of date August 19, 1905, was the only agreement entered into between plaintiff and defendants” ;
no intimation that there was any issue raised as to the authority of the agent, but that the issue was a clear-cut issue on the facts as to whether the agent had in fact abrogated the written contract. These instructions of the court in relation to the issues which were presented to the jury were not objected to by the appellants, nor was any instruction asked looking to the determination of the question of authority of the agent by the jury. The only exceptions which were made to the instructions were an exception in relation to the reimbursement for extras, and for the refusal of the court to propound special findings to the jury; the special finding asked for being: “Was the written contract dated August 19, 1905, abrogated or set aside?” no question of authority being embraced in the finding asked for. The appellants, if we understand the record correctly, also asked the court for the following instruction, which was practically incorporated in the instructions:
“If this plaintiff is entitled to recover, he must show by a clear preponderance of the evidence that this written contract was abrogated or set aside and an oral contract substituted therefor; and if you find from the evidence that the written contract was not abrogated or set aside, then plaintiff cannot recover and your verdict must be for the defendant.”
Again, counsel for the defendants asked the following instruction :
“The court instructs you that there must in this instance have been a distinct intention, common both to the plaintiff*208 and to Bonham Galland. Doubt or difference is incompatible with the agreement. The minds of the parties must meet as to all the terms,” etc.
recognizing Bonham Galland as the principal actor in the case, and not questioning his authority. And so with all the other instructions asked for by the defendants. On this theory the case went to the jury, and it would be inequitable to allow a litigant to try out his case to a jury upon a certain theory and, upon the jury finding against him, to come to this court and ask for a retrial of the case upon issues which were not presented to the court below. The question presented was evidently an afterthought, for while the third assignment states that the motion for judgment non obstante veredicto .was based on the fact that there was no evidence tending to show the authority of Bonham Galland as agent to abrogate the written contract made for the construction of the building, and substituting a different and oral agreement therefor, the motion itself, as it appears in the record, does not bear out that construction. The grounds alleged in the motion were, (1) that the contract, if any, upon which the plaintiff sued and upon which a verdict was returned, was a contract void for uncertainty; (2) that the only contract in this case that-was proven was the contract dated August •19, 1905 (which was the written contract), and that there is no evidence legally sufficient in the case upon which the jury could find that this contract had been abrogated; (3) that there is no evidence legally sufficient to entitle the plaintiff to a verdict, but that there is evidence legally sufficient to entitle the defendants to a verdict, and (4) that, under the law and the evidence, the defendants are entitled to recover in this action. The second reason suggested embraced the old question of fact, viz., that there is no evidence upon which the jury could find that the contract had been abrogated. We do not know what argument may have been made upon this motion to the court, but so far as the motion itself indicates,
The judgment is affirmed.
Rudkin, C. J., Parker, Crow, and Mount, JJ., concur.