112 Wash. 641 | Wash. | 1920
The plaintiff, Esmond, commenced this action in the superior court for' Snohomish county, seeking recovery from the defendant, Richards, of a team of horses and a set of double harness, and damages for the alleged unlawful detention thereof by the
On August 4, 1919, appellant entered into a trade agreement with respondent by which he was to receive from respondent a team of light weight horses and $150 in exchange for the heavy team and harness here in question. Possession of the respective teams and harness was accordingly surrendered by each party to the other, each being given absolute and unconditional possession of all the property coming to him under the terms of the agreement. The $150 was not then paid to appellant by the respondent. There is conflict in the evidence as to respondent’s giving appellant a check upon a bank, sufficient in form, for the $150; but we think it is, in any event, certain that, if such a check was then given, it was then understood between the parties that respondent did not have sufficient funds in the bank on which the check was drawn to redeem it, and that it was understood that appellant should hold the check and not present it for payment for some two or three weeks until respondent received and deposited in the bank certain moneys he was to receive
The principal contention here made in appellant’s behalf is that the trial court erred in finding that there was no fraud or misrepresentation on the part of respondent as to the character and quality of the light team traded by him to the appellant, and that appellant was not entitled to rescind and reclaim the heavy team and harness on that account. As we view the record, this presents only a question of fact, as to which, while the evidence is somewhat in conflict, we think it clearly preponderates in favor of the finding and conclusion made by the trial court in that behalf. We arrive at this conclusion from a thorough reading of all of the evidence in the case as furnished us in the statement of facts. We think it would serve no useful purpose to discuss the evidence in detail in this opinion.
Contention is also made in appellant’s behalf that he is entitled to rescind the contract and reclaim the
Some contention is made that the court erred in finding the value of the team and harness in question to be $325, and awarding the alternative money judgment accordingly. This seems to be rested upon the theory that, because the appellant in his complaint alleged the team to be worth $300, the court should not have awarded respondent an alternative judgment for its value in excess of that sum; but plainly respondent was not bound by the allegations of appellant’s complaint as to the value of the team. The proof is all but conclusive that it was of the value of $325, as found by the trial court. Hence there was no error in awarding an alternative money judgment to respondent in that sum.
Contention is also made that the court erred in finding the value of the use of the team during the period respondent was deprived of its possession and use pending the action to be $135. The evidence fully warrants the. conclusion that respondent was deprived of the use of the team and harness by reason of the replevin for a period of over thirty days, and that the value of its use was $4.50 per day. It seems quite clear, therefore, that the award of damages in this sum in favor of respondent was not erroneous.
Holcomb, C. J., Main, Bridges, and Mitchell, JJ., concur.