120 Wash. 650 | Wash. | 1922
—Appellant furnished materials consisting of tile, brick, lime, sand and cement to one Butledge, a contractor, for the construction of a house for respondent, and not having been paid therefor by the contractor, brought a law action against respondent as
The cause of action stated in the complaint, omitting certain formal matters not necessary to set out, is as follows:
“That in the month of August, 1920, plaintiff sold and delivered to the defendant building materials of the reasonable value of $834.55, which sum defendant agreed to pay; that said sum is long since past due and that demand has been made for the said sum, and the defendant has wholly failed, neglected and refused to pay the same or any part thereof.”
Rutledge had contracted with the respondent in July, 1920, to build the house of tile and brick, for the sum of $1,700. On August 27, Rutledge was killed in an automobile accident.
Appellant claims that, after the death of Rutledge, respondent approached the president and manager of appellant, Mr. Englebrecht, and in the presence of three other persons, promised and agreed to pay for the amount of the materials that had been sold and delivered to Rutledge, all of which were on the ground, and some of which were in the building, and amounting to the sum stated in the complaint, if respondent might proceed immediately with the construction of the building himself. It is contended by appellant that the latter matter made a sufficient consideration for the independent promise of respondent; that it was sufficient to support an independent contract on the part of respondent to pay for the materials, and that the promise was overwhelmingly established by the evidence. It is further contended that the finding of fact by the court that the new and independent promise was not made by respondent is against the overwhelming preponderance of the evidence.
But the trouble is, in this case the trial court found, notwithstanding there were more witnesses on behalf of appellant than on behalf of respondent, that the new and independent promise was not made by respondent. Appellant says respondent did no more than deny that the promise was made to appellant.
The record shows that respondent testified as to the details of his conversation with appellant and with the widow of Rutledge, the contractor, and does deny that he made any such promise as was testified to by them. He also testified to what was said to the contrary. Assuming, but not deciding, that there was sufficient consideration for a new promise, we are unable to conclude that the trial court erroneously found that no new and independent promise was made by
The trial court summed up the evidence at the conclusion of the trial and stated that, taking it all together, he was not satisfied that the evidence preponderated in favor of a subsequent agreement.
Since he had all of the witnesses before him, and was able to observe their demeanor and judge of their credibility, we are unable to say that the evidence preponderates against the finding of the trial court. That being the case, it is useless to discuss the legal question advanced by appellant.
Judgment affirmed.
Parker, C. J., Main, Mackintosh, and Hovey, JJ., concur.