43 Wash. 163 | Wash. | 1906
The plaintiff in this action seeks an accounting from the defendant; and judgment for the amount found to be due. The original complaint alleged that, on the 23d day of December, 1898, the plaintiff and defendant entered into a written contract, which was fully set forth in the complaint. The contract recited, in substance, that the defendant
It was further alleged that, for the purpose of more fully setting forth the true intent of said agreement, the parties did, on the 25th day of Pebruaxy, 1899, enter into a further written agreement. This new agreement is also set forth and recites substantially the same as the former one, except that it exempts farm lands from the operation of the agreement. It was next alleged that the plaintiff sold to one Simons all his interest in the profits to he derived from sales of such lands in Skagit county, Washington., hut that he rendered services in pursuance of the agreement and effected sales of about thirty-five thousand acres of timber lands, situated in the counties of Snohomish, Whatcom and King, and that defendant made the sales to purchasers procured by plaintiff; that plaintiff expended about $6,000 in his efforts to. procure such purchasers, -and that defendant refuses to reimburse him or to account to him for his share of the profits, which are alleged to he $52,750.
The defendant moved that plaintiff he required to’ furnish
An essential matter to be determined is, does the amended complaint state new and material facts not alleged in the original complaint? It sets forth a written agreement between respondent and one Simons, the latter representing one Richardson and associates, which agreement recites, in effect, that the parties thereto are engaged in carrying out an arrangement for the purchase of timber lands in the state of Washington for said Richardson and his associates, and that respondent is to receive from said Richardson and his associates fifty cents per acre for his services in procuring from ten thousand to forty thousand acres. It is then alleged that the fifty cents per acre which respondent was to. so receive was in addition to and without regard to the prices
However, notwithstanding the fact that the amended complaint stated no new material matter, still we think it was entitled to consideration upon its merits, and that its sufficiency is reviewable here. Respondent says in his brief that the new complaint was filed without leave of court. The record is entirely silent upon that subject, and neither the motion to strike nor the order granting it states such fact as a ground for striking. The motion to strike upon the ground alleged therein was equivalent to a demurrer to the amended complaint, and the order granting the motion was in effect the sustaining of a demurrer. We think the; amended complaint does show ground for recovery of some amount with respect to commissions upon land sales, outside of Skagit county. Even if it be considered with reference to the bill of particulars which wasi filed pending the original compjlaint, there are items which show that some of the sales were made within six years of the commencement of this action. Einding that the amended complaint stated a cause of action, we hold that it was error to strike it.
Mount, C. J., Fullerton, Rudkin, Crow, Root, and Dunbar, JJ"., concur.