*1 507 Department 15, 1956.] [No. 33416. One. March George al., N. Mon Wai et al., et Appellants, v. F. Respondents.1 Velikanje, Velikanje & Moore and Paul Goode, M. appellants. Clark,

G. E. for respondents. J. This is the third appeal Donworth, out of a arising written lease certain real involving Yakima. property are basic facts stated in Mon Parks, Wai v. 43 Wn. (2d) 562, 262 P. (2d) (herein referred as the first Parks, and Mon Wai v. appeal), 46 Wn. 278 P. (2d) 1Reported in 294 P. 931. (herein appeal), and referred to as necessary only

will be mentioned herein to the extent understanding upon by appel- points relied the two lants on this which are: “1. That the court committed error under R.C.W. 4.88- *2 per .240 in the allowance of interest at annum from 6% paid. 3, 1952, December until entry the “2. That the court committed error in the of judgment allowing George the defendant F. Parks $250.00 attorneys’ plaintiffs.” fee the appeal, After the remittitur on the second went down which it of was held that Parks entitled to the benefit was appeal by necessity case, Watkins’ the the reason of of superior Parks filed in the a motion for the issuance court against appellants of a writ of execution accordance with judgment the remittitur and for for reasonable fees and taxable costs. heard, 25, 1955,

This motion was and the on March providing entered an order of a of for the issuance writ execution for the sum of interest $1,611.29, per per 3, 1952, thereon at six cent annum from December paid. until day,

On the same the court in favor of entered against appellants for dollars and two by award, made the court for certain taxable costs. This following upon reasonable was based the provision of the written lease above referred to: “ any ‘In the event suit or action is instituted to enforce regain agreement, or to the terms or conditions of this of any possession part thereof, same, of the or party in such suit or action shall entitled to reasonable be by attorneys’ court;’ determined ...” fees present appeal being prosecuted from the order is and the described above.

Appellants’ they rely point re- first on which reversal of $1,611.29 lates to interest on the sum the allowance of appellants from Parks from the date collected this amount by on the means of their of execution based writ September 12, 1952. This (which by prosecuted Wat- on reversed kins). " When, this court held by rea Parks was entitled to the of Watkins’ benefit necessity son case reversed order denying any necessary result relief, trial court previously appellants’ money col was that retention Consequently, in the lected execution became unlawful. allowing present proceeding the trial court was correct wrongfully appellants $1,611.29, on the were holding, they 3, had December use which had since 1952. Equipment

As Tool stated Mall Co. v. Far West Co., 45 Wn. P. 652: general agreement “The authorities are in when ‘liquidated’ amount claimed is or when amount of an ‘unliquidated’ computation, claim is ascertainable inter- damages withholding est is allowed as for the of the amount *3 (1910); due. Parks Elmore, 584, v. 59 Wash. 110 Pac. 381 71 Dairy, Herman v. Golden 582, Arrow Wash. P. (1937); 581 on Damages § 54; McCormick Sutherland Damages (4th ed.) §§ 1004, 1030, 320, 329.” Here there no error in the trial court’s of inclusion in the order for the of issuance the writ of execu- against appellants, damages tion since Parks to was entitled wrongful withholding for the $1,611.29. point appellants

The second on which trial claim that the entering judgment against court erred inwas them in and attorney’s favor of Parks for two dollars alleged right any prayed when Parks had not thereto nor appeal disposed therefor until after the second had been of by this court. quoted provision

We have the above of the lease to the party effect that the shall entitled to reason- attorney’s by able fees to be fixed the court. prevailing party

There nois doubt that Parks the litigation this from and after this court’s decision on question application The is whether attorney’s fees came too late. litigation began

The course of this rather unusual when appellants, lease, as lessors under the written instituted this against Watkins, action Parks to. lessees, and unpaid assigned recover rent. Parks had his interest therein shortly after the lease. Watkins execution of the parties contentions of the several are described in our de- cision on first as follows: 7,1952, “March Mon Wai and wife commenced this action against unpaid and Watkins for the rent. Parks an- setting up agreement swered, Watkins and between himself and praying that, in event be en- over against him, tered he have and recover amount, an Watkins full with at- torney’s alleging fee that the answered, of Watkins $150. prior and to the institution lease was terminated rescinded binding agree- no and the action and that there was valid at ment existence that time. trial Parks Wat-

“The court plus interest $1,215, in the amount of kins, them, each also, as costs, and part and an fee of The court $250. same awarded to- Watkins, to Parks $1,465 amount gether alone is fee Watkins of $150. appealing.” 562, 262 P. Parks, 43 Mon Wai v. Wn. (2d) 196. Appellants did not contend since Parks original judgment 1952,it in their entered in be- favor judicata right for at- of Parks’ an allowance came res torney’s fees. this court

However, was reversed prosecuted. then Watkins which appellants, sought writ of execution party to the first denied, he not a because was court trial *4 appealed court, sustained this to Parks then ap- appeal was the first decision on that its his contention necessity of the case. plicable from to Parks to decision on our effect of The judgment effective of the make the reversal judg- Therefore, the 1952 to Watkins. well as Parks as as to judicata res being wiped thereafter be could not out, ment, anything. as to judg in court for Parks,

When moved the trial then, for the ment for he reasonable prevailing party time, a in the the mean action within ing quoted provision lease. The trial above allowing time, at court did not in him this relief that err though previously prayed he had not for such relief. even Appellants judgment, in had, awarded two been attorneys’ lease, dollars the same fees under nullity and, its after that became a because of they object position in to reversal this no to are making the the court’s same allowance to Parks. judgment appealed hereby order and are af- firmed. J., Finley, Ott, JJ., C.

Hamley, and concur. (concurring part dissenting J. and Schwellenbach, part) agree majority with the that is to entitled —I agree interest, I but cannot he that is entitled to an attor- ney’s problem, fee. In to order better understand I wish chronological to set out the events in order. Watkins,

Parks and as lessees of the lease, Mon Wai took possession July 1, 1949.

July 22, 1949,Parks Watkins, sold his interest to as- who agreed pay, particulars perform, sumed and to in all and rentals, terms, and conditions of the Mon Wai lease. Mon Parks and Wai sued on the Watkins lease. denying liability assign- answered, because prayed Watkins, ment to and in the event him, he and have recover together in the full Watkins amount, attorney’s fee of $150. alleging answered,

Watkins the lease had termi- prior nated to the institution of the action.

The trial court entered Parks and Wat- plus kins, them, each of the amount $1,215, and costs and an fee of The court also, $250. same awarded in the amount of $1,465 attorney’s Watkins, Parks over with an appealed. fee of Watkins alone $150. *5 pending, Mon Wai collected his While Parks satisfied Parks his Parks Watkins. collected Watkins. judgment.

We reversed the against Mon a execution Watkins then secured writ of recovery money paid which he had Wai Parks for also, on his Parks over. He as party, attorney’s fee Mon Wai. a obtained $250 superior original his confined In the trial in obtaining Watkins. activities assign- solely liability to Mon because of his He denied Wai The trial him liable his ment to Watkins. court held because He did not name the lease. judgment, a result of

As Watkins’ reversal “got in the second a free ride” when we held appeal by rea- is entitled to the benefit of Watkins’ “Parks import necessity of that decision case.” son of paying Parks from was to relieve “pre- not him to an fee as it did entitle but prevail vailing party.” not to Mon He did defense litiga- let in door after the action. He was the back Wai’s concerning lease had ended. tion