12 Wash. 259 | Wash. | 1895
The opinion of the court was delivered by
The defendants, Hill and Granger, were in possession of and conducting a wholesale and retail butcher business in the city of Seattle known as the People’s Market. They claimed to own and to have the right to sell the goodwill of said business. They were also in possession of certain tools, implements, and slaughterhouse property used in connection with the business under an oral lease from the plaintiff.
The defendant Splawn, acting for himself and the defendants Bounds and Meyer, agreed with Hill and Granger to purchase said business and the leasehold interest in said personal property and slaughterhouse. While Splawn was preparing to engage in said business, he learned that the plaintiff claimed to own it, and he notified him by telegraph that he had bought the same of Hill and Granger as aforesaid. On receipt of this notice the plaintiff came to Seattle and claimed to own the business, whereupon Splawn caused.
“It is agreed that if said Murray or any person claiming under him shall within sixty days hereafter, legally prevent said Splawn from having and enjoying the right hereby conveyed, then the said money shall be returned to said Splawn by the said bank, and this transfer shall be deemed void; but if the said Murray shall not within that time legally prevent said Splawn from having and enjoying the right hereby conveyed then said money shall be paid by the bank to the grantors or their successors in the trust herein: Provided, however, that if within the said sixty days said Murray shall commence legal proceedings to prevent the enjoyment of said right by the said Splawn, then the money shall remain in the bank unto the termination of such proceedings, and then be returned to said Splawn or paid to the grantors herein or their successors in the trust, accordingly as the decision may be for or against the right of said Splawn, as hereinbefore stated.”
The plaintiff was not a party to this agreement. After the execution thereof the defendants Splawn, Bounds, and Meyer, under the firm name of A. J. Splawn & Co., took possession of the property aforesaid, and conducted said business. The plaintiff subsequently began this action to obtain certain relief of an equitable nature against Hill and Granger and the Okanogan Live Stock and Dressed Beef Company, and especially to have himself adjudged to be the owner of
Upon the argument of the case here it was objected that the appeal first mentioned should not be considered for want of exceptions to the findings of fact by the lower court, and a motion was made for the affirmance of the judgment as to said parties on that ground. An examination of the record discloses the fact that no sufficient exceptions were -taken by these appellants to the findings of fact under the repeated holdings of this court, and as to such appellants the judgment of the lower court is affirmed. The effect of this is to relieve Splawn of liability as to said parties, and to make him liable, if at all, to the plaintiff.
As against appellant Splawn the court assumed that the sum of $3,000 which he had agreed to pay for the business, etc., was the measure of damages which the plaintiff was entitled to recover, and it was .directed to be paid to the plaintiff accordingly.
Several errors are alleged by Splawn as entitling
It is further contended that the price which Splawn had agreed to pay to Hill and Granger as aforesaid could not be held to constitute the measure of the plaintiff’s damages, and it is also contended that under the agreement it was stipulated that in case the plaintiff should establish a right to the property and business that the consideration was to be returned to Splawn. It is true that the price fixed by Hill and Granger and Splawn was not binding upon the plaintiff, and the plaintiff evidently did not elect to be bound by that price in bringing his action, for he sought to recover more than that sum, and only asked that the deposit be applied upon the judgment. The court, however, seemed to assume that this stipulated price was the measure of damages, and while the relief
It was further contended that the decree should not stand, on the ground that if Hill and Granger had brought an action upon the note deposited with the bank, that Splawn might have had defenses partial or otherwise thereto, for the reason that the business was not as good as represented by Hill and Granger, and it is contended that the court refused to permit evidence to be introduced by Splawn as to the value of the goodwill to show that it was of much less value than represented to him by Hill and Granger. There were no stipulations, representations, or warranties with reference to the value of the goodwill or the amount or character of the business incorporated in the written agreement, but conceding that Splawn might have shown such oral representations, we do not think that he is in a position to raise the question in this case, for nothing of the kind was set up as a defense in his answer. He was fairly advised' by the complaint that the plaintiff sought to obtain this $3,000 deposited as aforesaid, and if he had any defense going to the failure of the consideration or by way of recoupment he should have pleaded it. Not having done so, he was not entitled to make the proof offered.
Otherwise, the matters aforesaid between said parties seem to have been fairly and fully litigated, and we
Dunbar, Anders and Gordon, JJ., concur.
Hoyt, C. J., not sitting.