26 Wash. 50 | Wash. | 1901
Tbe opinion of tlie court was delivered by
The complaint in tbis cause avers, in substance, tbat between tbe first day of January, 1887, and-tbe first day of January, 1893, tbe respondent, at tbe special instance of Lafayette 'Woodward, now deceased, rendered continuous services to said Woodward in tbe management of bis business, property, and affairs in Spokane county, wbicb services were of tbe reasonable worth and value of $400 per annum; that on or about tbe 1st day of January, 1887, respondent and said Woodward entered into an agreement whereby said Woodward agreed to furnish respondent funds for investment in real estate in tbe city of Spokane when, in tbe judgment of respondent, such investment would be profitable; tbat tbe said real estate so purchased should be sold when, in respondent’s judgment, it was ad
It is assigned as error that the court overruled the demurrer to the complaint. Upon the motion of appellant before the demurrer was filed, the respondent furnished a bill of particulars showing that the alleged agreements were oral. It is therefore argued upon demurrer that, if the complaint states a cause of action at all, it is one upon an account stated; that respondent must be confined in his proof to the account stated, and must recover upon that
A number of errors are assigned upon the rulings of the court upon the introduction of testimony. We will not discuss them in detail, since we believe no material error wras committed. We think the deeds admitted in evidence were sufficiently shown to he connected with the real estate transactions to permit them to go to the jury. It was objected that the recitals therein as to prices were not con-, elusive. Respondent did not undertake to maintain that they were conclusive, hut only that they were prima facie
It is assigned as error that the court permitted respondent to testify in violation of the statutory rule prohibiting a claimant from testifying concerning transactions had by him with, or statements made to him by, the deceased person. We think the court did not permit a transgression of the rule. Respondent was instructed by counsel to exclude from his answers anything concerning personal transactions with Woodward, or any conversations between them about such transactions. This, we think, respondent did. He testified that he looked at certain lots when he was alone, stating the time when he saw them, their value, and that deeds were afterward made for the property; but he did not say anything at all about the conversations or transactions between himself and Woodward. Considering the difficulties attending the proofs in this class of cases, and the usual temptation to transgress upon the statute, we think the respondent kept well within the rule as interpreted by this court in Ah How v. Furth, 13 Wash. 550 (43 Pac. 639).
It is insisted that the court erred in not sustaining appellant’s challenge to the legal sufficiency of the evidence at the close of respondent’s testimony. The averments of the complaint are that respondent was to receive one-half of the net profits arising from the real estate investments. There was evidence as to the amount of profits in gross, and it also appeared in evidence that rents accruing from some of the property had been collected, and also that expenses had been incurred for taxes, insurance, and repairs; but it does not appear what amount of rent was collected, or what amounts had been expended for the purposes above
“Q. Just state what he said in the presence of Mr. Woodward, and what Mr. Woodward said to him, or what he said to Mr. Woodward. A. He told Mr. Woodward that he had brought me up there to explain this property, that he wanted to go in with me on. And Mr. Woodward said to him, ‘Well, I ain’t going to give you any money to put into a mining property;’ and Mr. Marvin said, ‘You are not giving me money, it is money that is coming to me.’ He said, ‘I understand that all right, but I don’t want you to fool it away, I want to put it where it will do you some good some day.’ And Will said, ‘Where are you going to put it, what are you going to do ?’ And he said, ‘Well, you understand I am not going to beat you out of anything that is coming to you, I will give you that block some day.’ Q. Anything further said about the block? A. Ho. Q. Did they do any figuring between themselves as to about the amount of difference in money matters between them ? A. Yes, they did; they were figuring there as to what amount that he thought — that Will thought he owed him. Will stated that he owed him about $12,000. . . . He says there was about — Will said he thought there was about $12,000 coming to him; and the old man said, ‘Very well, whatever the difference is we will fix it.’ Mr.'Huneke: He said that to Mr. Wood*59 ward? A. Yes, sir; Mr. Marvin said it to Mr. Woodward. Mr. Jones: And what did Mr. Woodward say? A. Mr. Woodward said, Well, whatever difference there is between us, I will fix it up. I don’t want to give you any money to fool away.’ Q. State whether or not there was any conversation between Mr. Marvin and Mr. Woodward with reference to when he was going to give him this [French block? A. Yo. There was not anything definite; he said, ‘I will give it to you some day.’ ”
The above testimony stands uncontradicted. The conversation mentioned occurred more than nine years after the beginning of the period covered by the real estate investments. The testimony is sufficiently clear that there had been receipts and expenditures during the nine years, and we think the jury could reasonably conclude, under the above testimony, that Woodward’s response to respondent was an admission that he owed respondent at that time as much as $12,000. He at least did not undertake to- dispute the amount. This conversation is said to have occurred only about two and one-half years before the death of Woodward; and, since respondent had shown an amount due at so recent a date, we believe, if the amount of the indebtedness determinable from net profits became less after that time, it, under the circumstances, reasonably devolved upon appellant to show it. Presumably the books and accounts of the deceased were in possession of appellant, as his executor, and the executor was therefore possibly in position to show this fact even more conclusively than respondent could have done. The verdict, being for more than $2,500 less than the $12,000 amount- stated in the above testimony, we think is sustained by said testimony, and that the challenge to the legal sufficiency of the evidence was properly denied.
It is urged as error that the court denied the motion for new trial on the ground of misconduct- of the jury. One
For these reasons we believe the record does not contain any substantial error, and the judgment is therefore affirmed.
Reavis, C. J., and Fullerton, Anders, Dunbar, Mount and White, JJ., concur.