*1 Dеpartment August 23, One. [No. 1956.] Ring al., J. Ennis et Appellants, al., v. Harold E. et Richard Respondents.1 1Reported in 300 P. *2 appellants. Ennis, J. for and Richard C. Harrison
William respondents. for Raftis, & Raftis February and Ethel S. 15, 1944,Walter Ott, forty-three-hun- Wynhoff, a of a wife, his executed lease
O. Ring. Ring It and Edwin W. ranch to Harold E. dred-acre years provided month, terminat- for term of ten and one ing April 1,1954, an rental of seventeen and for annual cash paid December 1st of dollars, to be on or before hundred year year, exception of the last the each with the payable 1, rent was on or before October when the The lessees to have the use of certain Indian-owned were (the Allotment”) which land “Henrietta Hazelhurst Wynhoffs. agreed then under lease to the The lessees to comply department regulations the of Indian affairs’ with pertinent Wynhoff-Ring pro- lease further sow, vided that lessees the would in fall of one hun- twenty they wheat, dred acres to winter and that “good farming manner,” fаrm the land and return the good repair premises expiration at the lease. prior Wynhoffs 20, 1947, At times to various March mortgaged the ranch to Albert March 20, 1947, Gieb. they deeded the ranch wife, to Albert Gieb and and on the date, same the Giebs executed a contract of to sale back Wynhoffs. premises 17, 1950,
June Giebs deeded to Bernard gave option Thereafter, M. and wife. the Whites White Wynhoffs purchase property to to on De- or before 1, 1956. cember
Subsequent 17,1950, June tenants, to Edwin and Har- Ring, writing by Wynhoffs old notified in were and the subrogated Whites that Whites in- leasehold Wynhoffs, paid terest and that the rent should be paid Thereafter, rent Whites. to the Whites. Rings the Whites sent a nоtice part, read, in follows: you agreed "... the sum of as rent $1700.00 day year payable each on 1st of December ex- with the year ception payable of the last in which the rent is on or year. year October 1st before year 1953 is the last your tenancy provides under said lease which for expiration April consequently, your 1, 1954; the term on payment year rental further 1953is due October are 1st. You your payment notified rental is in default and *3 according provisions to the of said if such default thirty days giving cured within of of notice of default, said lease shall terminate and the lessor shall enter possession into of said real estate.” Rings the rent claimed to be due in the they pay notice, October 13th nor did the rent or on before required by as lease. January Wynhoff Wynhoff 6,1953, Ethel O. and Walter S. divorced, and were William C. Harrison and Richard appointed Ennis court commissioners to sell and dispose forty-three-hundred-acre By supple- of the ranch. 26,1954, mental order March dated the commissioners were specifically authorized names, “To commence and maintain in their own as Court any necessary any Commissioners, ... to collect prosecute any rents, . . . and to or defend action for damages may prop- which occur connection real with said ” .,
erty . . August Copen- 23, 1954,Walter S. and Ethel O. (Wynhoff) conveying haver Whites, sold ranch to the by quitclaim their therein interest deed. litigated joined by
This action was issues a third It six involves complaint and the answer amended alleged lease. arising of the breach from of action testimony, upon mo- defendants’ plaintiffs’ close of At the third, sixth, first, tion, the trial court dismissed causes of action two and items one and of complaint related back the third stated originally that, commenced date action was рremature. The fifth of action were therefore, these causes that the oral the reason dismissed for cause action was agreement upon the statute was within it was based action, deal- the fourth causе of frauds. The third item of ing property, personal was dismissed with conversion of of failure prejudice,
From of dismissal without plaintiffs appealed. have determining prematurity, analysis of the
In issue necessary. pleadings is оriginal February 17, 1954, action was commenced appellant only. This con- commissioners separate (1)
tained three causes of that the annual year rent of seventeen hundred dollars for the last of the owing, unpaid [although due, lease was then provided the lease (2) twenty otherwise]; that the one hundred acres planted good “in winter wheat were not accordance with husbandry,” damage appellants; (3) to the pasture greatly over-pastured lands were and had been permitted appellants’ out, be eroded or killed dam- age. April
A first amended was served 1954. It alleged (4) three additional causes of that the lease *4 exрired, respondents that had violated the lease fail- ing keep premises good repair, in a state of and that personal property certain had been converted the re- spondents; (5) one-hundred-sixty-acre that Hazelhurst provided by allotment surrendered, had not been as a sub- sequent agreement; (6) oral and that the con- occupy trespass upon unlawfully. tinued the land complaint A amended second was June 7, sеrved 1954. It alleged pleaded same six causes of action in the first
288
amended, Wyn- prayed addition, and, in hoff-Ring year’s designate last lease be reformed to 1, 1954, be due instead of rental to October October alleged obviously that the due date latter typographical error. A motion to dismiss second amended respondents. appellants motion for filed filed a parties. 15, to amend to add additional October leave rеspondents’ 1954, dismiss, the court denied motion to granted appellants’ amend, motion for and directed leave (Wynhoff) Copenhaver S. and Ethel Water O. joined parties plaintiff. as The court’s order further di- complaint аllege parties’ rected that the in- new added subject in the terest land which was the of the parties plaintiff verify complaint. that all complaint, A third amended with which conformed pleading order, 26, court’s was served October 1954. This alleged plea the same six causes of action but abandoned the for reformation and relied as breach of the lease drawn. , We are committed to the rule that, if an amended complаint (1) (2) adds a new cause of or abandons theory a former or cause of it does not relate back to original complaint but, instead, rests the action pleadings Seely (2d) as Gilbert, amended. 611, v. 16 Wn. (2d) (1943); 134 Creditors, P. Skidmore v. Paсific (2d) (2d) (1943); 138 P. Herr Herr, 35 Wn. (1949); High High, 164,211P. 41 Wn. (1953). 811, 252 P. exception, pertinent,
An not here is stated in Pleading, 6(4), Rule of Practice and Procedure 34A Wn. (2d) original,
In their amended, and second com- plaints, appellant commissioners the claim of rent allegation payment was due complaint, theory In the third amended of mistake and appellants proceeded upon abandoned, reformation was theory lease, written, new that the had been breached. Under rule, the above abandonment a former theory superseded causes the former to be en- *5 High, supra. In High ad- tirely by pleading. the amended parties. complaint added new dition, the third amended juris- filing pleading, cоurt had no Prior of that to the by earlier They not them. bound diction over pleadings. spoke the third amended the date action The Creditors, effective. Skidmore became Pacific supra. dismissing appellants’ first,
The trial court erred sixth, items one and two of the third, ground upon prematurity. of action if that, We have held of the trial court upon ground, will if erroneous it be sustained any ground upon correct estab within the Blumhardt, lished Ferris v. (1956),
400, 293 P. and casеs cited. respondents urge The that the trial court can be sustained ground Wynhoffs conveyed that, their when they thereby interest in the ranch Whites, forfeited rights all under the lease.
This was, effect, commenced as of the date the third amended was date, effective. Prior to that Wynhoffs conveyed property had their interest in the by quitclaim the Whites deed. quitclaim conveys grantors’
A deed in, interest property nothing McCoy to, or title the real more. See v.Lowrie, (1954). 44 Wn. 483,486, 268 P. A right arising of action from a contract is a chose in action personal property. Wynhoffs’ quitclaim deed to the conveyed only Whites their in the interest real estate and assign any damagеs cause of action for or rent they allegedly acquired against respondents prior
Respondents urge further that the trial court can sus- tained that the lease was terminated notice of forfeiture served mеrely The notice informed the lessees that for thirty he days declared in unless rent
feiture n the lessees would have thirty- lease provided
paid. In the default. the event in which to correct days’ grace lease and the notice contem rent both the paid, *6 affirmative оn the of part further action or conduct plated The a forfeiture would be effected. re the lessors before due, the rent and the lessors allegedly spondents action the forfeiture. accomplish They thereby took no to 13, notice of 1953. waived their that there is no within the We conclude ground and which the trial court’s proof established upon first, sixth, third, of dismissal appellants’ action can sus- items one and of of two tained. of relates to the fifth cause action respondents’
Appellants’ The court failure to surrender the Hazelhurst allotment. of a to introduce evidence refused to allow the appellants sur- oral that agreement subsequent the oral allotment, agreement render land and the transfer of an interest was within involved Tire Kelly Springfield cite of frauds. Appellants statute Faulkner, Co. 382 for 549, 191 71 P. (2d) (1937), Wash. executed oral contract is within рroposition the statute of frauds. “ An executed contract is one . . . where nothing remains to be done either ...” Black’s Law party (4th ed.), The Dictionary p. respondents’ promise surrender the Hazelhurst allotment had not bеen performed. find Hence, We no merit agreement executory. contention. appellants’
The item of court dismissed third the fourth action, cause of the re allegations pertaining removed and convеrted certain spondents wrongfully of of The personal property, upon failure proof. briefs, did not in their appellants argue, appeal the dismissal error, failure The of upon assignments are deemed abandoned. Shook they relate this ground, Bristow, 623, 41 632, Wn. 946 (1952), P. Mell, Winslow v. cited; 581, case P. (1956), cited. cases judgment the fifth The of the trial court is affirmed as to item the fourth cause of and as to cause three action. reversed, causе remanded with and the grant first, second, third,
instructions trial new and sixth causes of items one and two of the fourth cause action.
Appellants recover will costs.' J.,C. JJ., and Finley, concur.
Donworth, Hill, (dissenting) original complaint Schwellеnbach, —The was based notice October third complaint, original pleading, which included the three brought additional causes and which in new parties, supersede original did not pleading. It con- part tinued to be a of the record. I would affirm.
September 28, rehearing 1956. Petition for denied.