No. 1495 | Wash. | Feb 14, 1895
The opinion of the court was delivered by
The appeal in this case is based entirely upon questions of fact. In November, 1889, one Walters promoted and organized a townsite company called “The East Tacoma Improvement Company,” for the purpose of building a town to increase the value of certain real estate in which he and others were interested. The parties to this suit, Walters and
“Third: I furthermore obligate myself to cause to be returned to all or any of the stockholders of either of the corporations herein first named, each and every promissory note or notes executed by them in favor of either of said corporations, upon their surrender for cancellation of the shares of stock of either of said
On May 15, 1890, respondent paid $600 on one of the notes made by him as before stated, because, as respondent claims, he was informed by appellant that he was not included in the contract and therefore supposed he was obliged to pay the note; and, as appellant claims, because he had elected not to come in under the contract and therefore should pay up. On or about June 24, 1890, the respondent received a copy of the contract with a letter from one of the parties thereto other than the appellant, advising him that he was included therein. On June 30, 1891, the respondent transferred his $30,000 of stock to a third party. On December 4th following, this action was .commenced to compel a specific performance of said contract of April, 1890, and to recover back the $600 paid on the note as aforesaid. Judgment was rendered for the plaintiff for this $600, and thp defendant appealed therefrom.
One of the contentions between the parties was as to whether the respondent was required to surrender all of his stock, which included the $30,000, as well as the $4,000, under the contract, if he sought to avail himself of it. Respondent contends that he was only to surrender the $4,000 thereunder, while ^appellant contends that he was to surrender all of his stock; and it was proved that the other parties to the contract did surrender their entire stock thereunder. We regard this contention as immaterial, however, for it seems to us that the first point made by appellant is well taken,
We are fully satisfied from the proofs introduced that respondent did not at first intend to surrender his stock under the contract, thinking that the speculation was likely to prove a profitable one; but after the delay aforesaid, and after the affairs of the company had taken an unfavorable turn, he sought to secure the benefit of its provisions. We think his action in the premises so clearly barred his right to a
Hoyt, 0. J., and Anders, J., concur.
Dunbar and Gordon, JJ., dissent.
ON MOTION OE APPELLANT FOR JUDGMENT.
On February 14th a decision was rendered in this cause, reversing the judgment of the lower court. The appellant has filed and served a motion for judgment upon the notes pleaded in his cross-complaint.
It is not contended that the relief now asked was urged upon our attention at the prior hearing, but it is claimed that it should follow as a matter of course, the court having found against the plaintiff upon his cause of action. A further examination of the record does not satisfy us that this matter was fully litigated or received such attention at the trial as would justify the rendering of a judgment thereon at this time. The main controversy was apparently upon the plaintiff’s cause of action; and the right of the defendant to recover upon the notes seems to have been only indirectly brought in question and incidentally referred to several times upon the trial. In one part of his testimony plaintiff claimed there was an agreement that the notes were not to be paid, and in another there was a casual reference to the fact that he had received no consideration therefor, as the deed to the lands in question had never been delivered to him. It also appears that the defendant claimed to have come into the possession of said notes as a bona fide holder, and he now urges that such defenses were not available as against him for that reason.
The evidence upon both sides as to such matters is meager and unsatisfactory, and in view of the fore
Hoyt, C. J., and Anders, J., concur.