3 Wash. 420 | Wash. | 1892
The opinion of the court was delivered by
The cause is here upon a second appeal, the decision on the former appeal being found in 1 Wash. 149. (23 Pac. Rep. 802.) It now appears that the court below, after allowing plaintiff to file an amended complaint, to which the defendant answered, proceeded to try the cause. Thereupon, the agreed statement of facts having been submitted, the plaintiff offered to prove by witnesses the value of the goods taken from him by the defendant, but the court sustained an objection to any proof whatever except that contained in the statement, holding that the parties were conclusively bound by its terms. The result of this action was a nonsuit, the very proof for the want of which the case was reversed on the former appeal being still absent. Appellant now urges the action of the court in refusing to hear testimony concerning the value of the goods as error, and, under the circumstances, we are disposed te agree with him. The terms of the stipulation are these:
“It is hereby stipulated and agreed by and between the parties hereto, plaintiff and defendant, by their attorneys, that the following are the facts, and all the facts, upon which this case shall be tried, and that the same are true, to wit: (Then follow the facts.) And it is further stipulated that this cause shall be submitted to the court with*422 out a jury upon the complaint and answer as amended and reply, and upon the note and mortgage in this case, and the aforesaid facts as the evidence, and all the evidence, in this action.”
The stipulation was undoubtedly made on the part of the plaintiff proceeding upon the theory that under the case of Wood v. Franks, 56 Cal. 217, and the other cases commented upon in the former opinion, the seizure of the goods by the defendant made him absolutely liable for the plaintiff’s debt and interest, no matter what was the value of the goods seized; or that, at least, the burden was upon the defendant to show the góods to be of less value than the amount of plaintiff’s debt; and, on the part of the defendant, the theory was that the plaintiff’s non-compliance with certain statutory requirements had rendered his mortgage void as to creditors of Rostein. So that in the mind of neither did the question of value, at that time, appear of any importance, as it was not, so far as the pleadings were concerned. The court below, at the first trial, held with the plaintiff, and gave him judgment for his debt and interest; but this court considered the proper rule to be as laid down in the former decision, so that under the law of the case, as thereby fixed, value was one of the most material elements of the plaintiff’s proof on a second trial, which this court regretfully ordered. Now, we had seen and read the stipulation, and had we had any idea that it would continue under all circumstances the only source from which facts could be made to appear upon the second trial, we should certainly not have remanded the cause, but would have dismissed it at once. We did not then remand for re-trial upon the question of value alone, as was requested on petition for re-hearing, because, although such might be a proper course under some circumstances, we did not think it just that the stipulation should be continued as binding upon the defendant while it was not' so on the plaintiff.
The judgment is reversed, and the cause remanded for a new trial.
Anders, C. J., and Dunbar, Hoyt and Scott, JJ., concur.