Jaklewicz v. Lenhart

86 Wash. 138 | Wash. | 1915

Holcomb, J.

Respondent brought action against appellant to recover the sum of $100, alleging an oral agreement that he was to procure, or introduce to appellant, persons who would take the job of logging appellant’s land, and that if the persons so introduced to appellant took the job and worked at it for thirty days, appellant would pay respondent $100; that, in accordance therewith, he introduced to appellant persons who logged the timber for more than thirty days, and that respondent performed his part of the agreement. Appellant answered, denying respondent’s allegations, and alleging that the agreement was that respondent should procure persons who would take the contract to do the logging for $4 per thousand for fir and spruce, and $4.50 per thousand for hemlock and cedar, for which appellant would pay respondent $100 when the persons so procured had been working at the logging for thirty days; that respondent failed to procure persons who would take the job of logging at $4 per thousand for fir and spruce, and $4.50 per thousand for hemlock and cedar; that the persons so procured would not accept the logging job for less than $4.35 per thousand for fir and spruce and $4.50 per thousand for hemlock and cedar; that respondent refused to procure other persons who would accept the work at the prices specified by appellant; that appellant awarded the contract for logging to the persons introduced by respondent, at the prices of $4.35 for fir and spruce, and $4.50 for hemlock and cedar. These allegations constituted a direct issue between respondent and appellant as to the terms of the contract and performance thereof. There were then further affirmative allegations, by which appellant attempted to set up a counterclaim by way of damages against respondent, in that the persons who did the logging performed the same in a slow and dilatory manner so that the price of logs dropped one dollar per thousand in the market; that they could have placed on the market, before the price dropped, at least four hundred thousand feet of logs, and that, by reason of their failure so to do, appellant was damaged $400. A demurrer to the affirmative matter in the answer was overruled, on the theory, perhaps, that the affirmative allegations as to the contract with respondent stated a valid defense and were so interwoven with all the affirmative allegations they could not be separated on general demurrer. Respondent then replied by way of general denial to the affirmative matters in the answer which were inconsistent with respondent’s allegations, and the cause proceeded to trial before the court and a jury, and a verdict and judgment against appellant for the sum of $100 and interest resulted.

Respondent moved to dismiss the appeal on the ground that the amount in controversy is less than $300, and that this court has no jurisdiction. The noted motion was denied and passed to decision on the final hearing, since, prima facie, appellant appealed from an adverse judgment wherein his nominal counterclaim of $400 was involved. It is thoroughly obvious that appellant’s alleged counterclaim stated no semblance of a cause of action or counterclaim against respondent. If it could be said to state any grounds of recovery at all, it could only be against the persons who did appellant’s logging, who were not parties to this action.

As to the form of decision herein, it is immaterial whether we in form dismiss the appeal or merely affirm the judgment. The record makes manifest that appellant did not even offer to introduce evidence in support of his attempted counterclaim. Had he done so, of course it should, and probably would, have been rejected. The issue as to the terms of the agreement was properly submitted to the jury under fair and appropriate instructions.

Numerous errors are claimed by appellant in the rulings of the court upon the cross-examination of witnesses by appellant, the admission and exclusion of evidence, in giving and refusing instructions to the jury, and in denying his motion for a new trial. With a feeling of consideration for and deference to appellant, we have carefully and patiently examined the entire record and find no error worthy of consideration. We do not feel inclined to establish a precedent whereon a practice may grow imposing jurisdiction upon this court in appeals when none exists in substance under the law. On the face of his pleading, appellant’s alleged counterclaim was purely fictitious so far as any legal liability of respondent was concerned. Nor did appellant attempt to preserve the substance of it by offering proof in support of it at the trial. Our appellate jurisdiction extends, in suits for the recovery of money or personal property, only to cases where the original amount in controversy or the value of the property exceeds the sum of $200. Const., art. 4, § 4. The amount in controversy is determined by the allegations of the pleading, not by the demand of the suitor. Ingham v. Harper & Son, 71 Wash. 286, 128 Pac. 675, Ann. Cas. 1914 C. 528. There was no amount in controversy between appellant and respondent exceeding $200.

The appeal is therefore dismissed at cost of appellant. Morris, C. J., Chadwick, Mount, and Parker, JJ., concur.