38 Wash. 1 | Wash. | 1905
The appellant and respondent, on the 16th day of January, 1903, entered into an agreement whereby a certain one hundred and sixty acres of land, owned by respondent, was to be used jointly by the respondent and appellant, until the month of May, 19 Ó5, for the purpose of raising alfalfa and feeding cattle', the respondent to furnish the implements, to be used on the farm and the cattle then on the farm, and to purchase for the use of the business one hundred head of cattle additional, to be placed on the farm in March or April, 1903, with the privilege to the appellant to place one hundred head on the
The complaint in the action is based upon an alleged violation of the contract on the part of the appellant. It is alleged, in substance, after setting up the agreement, that the defendant never furnished any money nor funds nor live stock under said agreement; that he refused to pay bis one-half of the expenses of maturing the stock, and that, in violation of his duties and obligations under said contract and agreement, with intent to defeat and defraud the rights and property of plaintiff, he put a brand of his own upon the one hundred head of stock which the respondent had furnished according to the contract, and attempted, by rebranding said cattle; to hold out to the public that the said cattle were owned by the defendant as well as. by the plaintiff, and that he had title therein and thereto; that, in further violation of his contract, he attempted a series of charges for expenses against the plaintiff, not contemplated by the agreement; that he was avoiding the obligations and conditions imposed upon him by the agreement by incurring large and unnecessary bills and expenses in the management of the ranch, and that;
' The answer to the complaint was a denial of the charges of the violation, on the part of the appellant, .of the contract, and an allegation, in substance, that the plaintiff .had not fulfilled the conditions of the contract on her
The first error alleged is that the court erred in refusing to quash the summons for want of proper service. Without entering into a discussion of the evidence presented on this question, we are of the opinion that the service shown to have been made was sufficient. In any event, the appellant afterwards answered without preserving the special appearance that he had made for the purpose of quashing the summons. We decided, in Walters v. Field, 29 Wash. 558, 70 Pac. 66, that, where a defendant, who' had entered a special appearance in an action, afterwards answered to the merits without preserving his special appearance, he thereby waived any rights thereunder and rendered his appearance general. See, also, Larsen v. Allan Line Steamship Co., 37 Wash. 555, 80 Pac. 181.
At the commencement of the case, the appellant objected to the introduction of testimony, for the reason that the complaint did not state a cause of action, and, at the conclusion of the respondent’s testimony, made a motion for a nonsuit on the ground that no cause of action had been sustained by testimony. As to the second proposition, it is not material whether the court erroneously re
On the first proposition, which is, in fact, a demurrer to the complaint, we think that a. cause of action was abundantly stated, and, if the allegations of the complaint were true, the respondent was evidently entitled to relief. It seems to' us that it is a plain action for the rescission of a contract. At all events, it was so treated by the trial court, and it is conceded by the appellant, as shown by a finding which he asked the court to' make
It is also insisted that the court erred in permitting the filing of a supplemental complaint, to the effect that, since the commencement of the action, to wit, on the 29th day of June, 1903, at the ranch of respondent in Okanogan county, being the ranch in question, the appellant, without cause
There are two answers to this assignment: (1) that there was no proper objection to the filing of the supplemental complaint; and (2) that courts admit proof of a series of acts, some of which aré done after the commencement of the action, tending to show a course of conduct, and to throw light upon and interpret the intention, of the party in the commission of the prior acts complained of. Platt Bros. & Co. v. Waterbury, 72 Conn. 531, 45 Atl. 154, 77 Am. St. 335, 48 L. R. A. 691; Allen v. Allen, 73 Conn. 54, 46 Atl. 242, 84 Am. St. 135, 49 L. R. A. 142; Morasse v. Brochu, 151 Mass. 567, 25 N. E. 74, 21 Am. St. 474, 8 L. R. A. 524. In these cases the question came up upon the admission of testimony, but, of course, if the testimony was competent, it would be competent to allow pleadings justifying the testimony. On all these objections to the pleadings and objections to amendments to the complaint, it has been uniformly decided by this court that amendments which might have been made in the court below on motion will, in the appellate court, be deemed to have been made:
We have examined the authorities cited by the appellant in .his very able and earnest brief, but we are unable to obtain any light from them for the reason that the argument of the brief is generally based upon the theory that the appellant was not, in the first instance, the violator of the contract. If that were true, the argument upon the measure of damages, which is made by the appellant, would
There appearing to us no error in tbe rejection of testimony, or in any other respect, tbe judgment will be affirmed.