Lauridsen v. Lewis

50 Wash. 605 | Wash. | 1908

Root, J.

This action was commenced by plaintiff, in March, 1906, to recover $80 alleged to be due for merchandise. Defendant answered by denials, and affirmative defenses and a counterclaim, to which plaintiff replied by a general denial and new matter. The case was tried by the court without a jury, and findings were made to the. effect that the plaintiff’s cause of action was barred by the statute of limitations, and that defendant could not prevail upon his counterclaim by reason of laches and the statute of limitations; whereupon the action was dismissed at plaintiff’s cost. From the judgment the defendant appeals.

No exceptions were taken to the findings of fact, and the only question here presented is as to their sufficiency to sustain the court’s conclusion as to appellant’s counterclaim. The findings, in so far as they touch upon the question of counterclaim, show substantially the following facts: That appellant, in the year 1901, rendered services as a physician to one David R. Burness, who died on the 19th day of October, 1901; that Burness was the owner of certain real estate in Clallam county, and in the state of Kansas, and also some personal property; that prior to his death, believing his sickness fatal, he conveyed all of his real property to this respondent, and at said time wrote and signed the following declaration as to the purposes of said conveyance:

“Port Angeles, Wash., May 7th., 1901.'

“I, D. R. Burness, being of sound mind, state the following as my last wishes and wish that hereinafter mentioned to be done in event of my death.

“G. M. Lauridsen I appoint to have full control of my af.fairs without the aid of the court. I have deeded to him all of my property and what I owe him he is to take out first of the proceeds of sale of said property real as well as personal. He is to pay all of my debts that he may deem just, and whatever may be left after all such debts are paid he will remit to my sister in Scotland, Mrs. McGregor, of Rutland Hotel, Edinburg. My watch is to be a gift to G. M. Lauridsen.

D. R. Burness.”

that a few days prior to the death of Burness, to wit, on the 15th day of October, 1901, respondent filed the deed for record with the auditor of Clallam county; that appellant did not know of the declaration hereinbefore set forth until after the commencement of the present action, but at divers times while he was attending Burness as his physician, Burness stated, ip presence of both appellant and respondent, that he had turned all of his property over to respondent; that on the 26th day of October, 1901, respondent filed his petition for letters of administration on the estate of Burness, wherein it was stated that Burness died intestate and possessed of certain real estate therein described, which description covered the property conveyed in the deed by Burness to this respondent ; that respondent was appointed administrator, gave notice to creditors, took an order of sale of the real estate, and sold the same; that prior to said sale respondent entered into an agreement with one Moore, whereby the latter was to bid in the real estate for a nominal price; and in accordance with said agreement, Moore, on the 22d of March, 1902, bid in the real estate for $55, and on April 4 following, respondent, as administrator, made a deed of said property to Moore, and on the next day Moore conveyed all of said property by quitclaim deed to respondent, for a consideration of $60, and that thereafter respondent claimed to own said property absolutely ; that appellant filed his claim of $244 for professional services with respondent as administrator, and the same was allowed and approved, but payment was refused for want of funds belonging to the estate; that on January 28, 1902, respondent filed a supplemental inventory and attached thereto the declaration of Burness hereinbefore set forth; that on the 13th of February, 1903, respondent, as administrator, filed his final account, and on the 28th of February, 1903, the court made a decree settling and allowing said account and discharging the administrator; that on the 2d of February, 1903, respondent sold to one Wold a . portion of the real estate for $2,650, and in February, 1905, sold other portions for $100, and also received $50 for the lots in Kansas and the sum of $57.50 in rent, and sold a safe belonging to the estate for $60; that he paid out for taxes on tide lands of the estate the sum of $560.95; that respondent “had said estate probated and gave due notice to the creditors and, pending the said probate thereof, sold and re-purchased the lands hereinbefore mentioned, in good faith.” In addition to these facts the court found as follows:

“That F. S. Lewis, the defendant, had full knowledge of his legal rights, and that his claim was a preferred claim in the probate proceedings, but slept upon his legal rights for an unreasonable time under the circumstances of this case; that his long acquiescence in the probate decree, and his failure to enforce or attempt to enforce the payment of his claim of $244 is in law and equity equivalent to affirmance and operates as a bar in equity. That defendant had ample opportunity to assert his said preferred claim in the probate proceedings but wholly failed to do so.

“That the defendant had knowledge of facts which would lead a reasonably prudent man to the discovery of fraud if there was any in the premises; the defendant did not use ordinary diligence to inform himself of all the facts and to avail himself of the means to detect fraud and in equity should be barred and defendant estopped.

“That defendant never attempted to enforce the payment of his said claim either against plaintiff as trustee or as administrator or individually until about more than three years had elapsed and was himself sued by plaintiff.”

Inasmuch as no exception was taken by appellant to the findings, they must be held as binding against him. It is urged that some of the findings are nothing more than conclusions, and that they are indefinite and confusing. If these objections are good, they should have been raised by exceptions taken in the lower court in the manner provided by the statute. Where no exceptions are taken to the findings, an appellate court will ordinarily give them a liberal construction rather than overturn the judgment based thereupon. It appears that appellant presented his claim to the administrator, and when the same was not paid and the final account of the administrator approved and allowed and himself discharged, he took no appeal or other procedure to question the correctness of the doings of the administrator or the rulings of the court in the pi’emises. The decision of the court in the probate proceedings would therefore seem to be conclusive against him, in so far as his rights were involved therein.

But it is urged that the declaration signed by Burness constituted respondent a trustee of an express trust, and that appellant did not know of such declaration until after the commencement of the present action, and that he may now maintain his counterclaim by reason of the fraud perpetrated by appellant in the disposition of the property. But the findings seem to prevent this. The court finds that the action of the respondent in regard to selling and repurchasing the lands was in good faith. In the declaration signed by Burness, he directs respondent to take out from the first proceeds of the sale of the property what he owes him. There is nothing shown in the findings as to how much Burness owed respondent. The evidence, which is not brought before us, may have shown this amount. There is no finding as to the total amount of debts and expenses paid by respondent. If the evidence as to all of these matters were before the court, we might perhaps form an opinion as to whether the action of the respondent was in good faith or otherwise. But these matters not being brought before us, we must presume that the evidence touching them and other matters involved was such as to justify the trial court in its findings of good faith. It appears from the findings that the' appellant knew, while he was rendering services to Burness as his physician, that said Burness had conveyed all of his property to respondent, and the court expressly finds that “the defendant had knowledge of the facts which would lead a reasonably prudent man to the discovery of the fraud if there was any in the premises,” and that he did not use ordinary diligence and inform himself; and furthermore that he slept upon his legal rights for an unreasonable time under the circumstances and acquiesced in the probate decree. If these things are true— and they must be accepted as such, inasmuch as no exception was taken to them — the trial court was justified in deciding against the counterclaim.

The judgment will be affirmed.

Hadley, C. J., Crow, Dunbar, Rudkin, Fullerton, and Mount, JJ., concur.