18 Wash. 311 | Wash. | 1897
The opinion of the court was delivered by
The complaint in this case alleges substantially that the defendant under employment as attorney at law by the plaintiff had prosecuted an action in favor of plaintiff and against one John ~W. Megrath et al. for a large sum of money, that in said action judgment was obtained against said Megrath et al. for the sum of $1,161.29, and that upon appeal to the supreme court this judgment was modified and affirmed to the extent of $861.29 and awarding the costs on appeal amounting to $41.50 to the plaintiff; that during the pendency of said action in the supreme court the defendant, as plaintiff’s attorney, caused a writ of execution to issue in said cause, and caused the same to be duly levied upon 460,000 bricks, the property of the said John W. Megrath, and of the value of $2,000, and that said brick were duly advertised for sale on the thirtieth day of June, 1894; that on the said thirtieth of June, 1894, and prior to the time advertised for the sale of said bricks, said defendant, as attorney for the plaintiff, and without her knowledge or consent, directed the sheriff to release the bricks from the levy of the writ, and that thereupon the sheriff did so release them; that thereafter the said defendant without the knowledge or consent of the plaintiff entered into an agreement with Megrath whereby Megrath executed and delivered a bill of sale whereby he sold and conveyed to the defendant said bricks and all thereof; during all of which time the defendant was acting as attorney for the plaintiff. The agreement above referred to is made a part of the complaint.
’ The instruction to the jury was as follows:
“ If you believe from a preponderance of the evidence in this case that the defendant, Jones, has taken, sold, or •otherwise disposed of any or all of the brick described in the pleadings and that the value of such brick, if any, at the ■time they were acquired by the defendant, exceeds the sum •of $500.20, then you will find a verdict for the plaintiff, .against the defendant, for the amount of such excess, provided, however, that you will not find for the plaintiff in a ■sum greater than $896.29, with interest thereon at eight per cent, per annum from May 26th, 1891, to this time. Should you find, from a preponderance of the evidence in ■this cause, that there was no such excess, you will find a verdict for the defendant.”
It is claimed by appellant that this instruction took from the jury the right to determine questions of fact which are raised by the pleadings. We have examined the record in this case and are satisfied both from the evidence admitted and that which was offered by the appellant and rejected— •although we think that the portion rejected was absolutely immaterial, and indeed a great deal that was admitted was immaterial—that the instruction was correct and all the instruction that could have been given in this case. From the respondent’s testimony it appears that the execution
“ How, while you do not care for the brick, yet I know as a business man that there can be money made in buying those brick on your judgment, and if you will give me permission to do so, I will buy them in your name and pay you the difference between the mortgage which I have to pay off and which is now on them and what I bid for the brick, and then I will hold the brick myself as a speculation, paying you of course the $62.20 already paid. I would rather do this business for you, as you are my client and I think it is to your interest to do it, but if you do not want them I would like to buy them in this way for myself.”
After some further correspondence showing that the respondent had evidently misunderstood the proposition of the appellant, thinking that he proposed to pay off her judgment, and after it was made plain to her, we think, by the appellant that he only promised to pay her the difference between the mortgage and what he was compelled to bid for the brick, the proposition was accepted by the respondent. It seems, however, that instead of buying in the brick the appellant had the execution withdrawn and the levy released, and entered into an agreement with Hegrath whereby he, the appellant, became the owner of the brick under certain conditions, and that he afterwards sold the brick and appropriated the proceeds to his own use. The relations of the appellant with Megrath, we think, are not
It is true that in this bill of sale, or agreement, or whatever it may be called, between the appellant and Megrath, it is stated that under certain conditions the proceeds of the brick are to be applied upon the judgment of Mrs. Gaff
The judgment will be affirmed.
Scott, O. J., and Anders and Beavis, JJ., concur.
Gordon, J., not sitting.