12 Wash. 326 | Wash. | 1895
The opinion of the court was delivered by
J.—The respondent Robertson brought his action below against the appellants on two counts. The first was for the sum of $315.25, with interest from the 6th day of March, 1892, at the rate of ten per cent, per antrum, for work performed for and at the special instance and request of the appellants. The second cause of action alleges that.the respondent’s wife, Sarah J. Robertson; entered into a contract with the appellants to buy certain lots in the town of Woolley, Skagit county, Washington. The contract was that the said Sarah J. Robertson was to pay to the appellants $500 for said lots, $100 to be paid down and the other $400 to be paid at the end of a year; that a deed was to be made for said lots, and that the appellants agreed, upon the payment of $100, to execute a bond for the making of said deed; that the appellants had refused to comply with their contract and refused to execute the bond, and that the demand had been made for the return of the $100, and an assignment of said claim had been made to the respondent.
The defendant P. L. Woolley separately answered, denying that he was a member of the partnership sued. The other defendants answered, denying that the labor performed by the plaintiff was performed as alleged in the complaint; and for an affirmative answer in substance claimed that under the agreement which they made the' appellants were to furnish, sell and deliver to respondent, on account of a reasonable value, certain goods, wares and merchandise, provisions and supplies, as should be requested by the respondent, necessary for the support of himself and
Upon the issues made by the pleadings the case went to trial and a verdict was rendered in favor of the respondent for $512.80.
The first contention of the appellants is that the statement of the first cause of action does not state facts sufficient to constitute a cause of action, for the
The other contention, that the purchase money was waived by the failure to claim the rescission within a reasonable time, we do not think can be sustained. According to the testimony of the respondent, which the jury from their verdict evidently believed, the payment of $100 was made and the appellants came into possession of that amount of money of the respondent upon a contract to do certain things, which they refused to do. They refused to proceed any further or make the contract according to the agreement, and there was nothing to rescind, and upon such refusal respondent was entitled to the money advanced.
Many questions which are raised by the appellants in this case are settled by the verdict of the jury. According to the testimony of the respondent, the appellants insisted upon changing the agreement. He testifies that under the agreement he was to have a year within which to pay the $400, and that when the appellants proffered the bond the condition incorporated was that it was to be paid within six months, and that the respondent thereupon refused to enter into such contract, and the appellants refused to comply with the agreement. This testimony is contradicted by the appellants, and flatly contradicted. But it was the province of .the jury to determine the truth of the matter in issue by the testimony of the witnesses, and
The other proposition, viz., that P. L. Woolley was not a member of the corporation has also been determined by the same tribunal. We do not agree with the appellants that there was no testimony tending to show that he was a partner. The fact that he was a bookkeeper for several years in the concern; that he admits that he was a partner in the store business; that the business of the store and the business of the partnership-were intimately connected; that they had the same bookkeeper and secretary; that their business was transacted in the same office, and that the same books were used; the further fact that the bill-heads which were used, and upon which the respondent’s account was made, had described P. L. Wooley as one of the members of the corporation and the secretary of the same; that these bill-heads were used for about three years; the statements of members of the corporation, which were sworn to by the respondent,' and other circumstances testified to, were tangible testimony tending to show that P. L. Woolley was a member of this corporation; and while the testimony may not be sufficient to convince this court that such was the case, there was sufficient testimony before the jury to sustain their verdict.
Several instructions are discussed in appellants’ brief, but the record shows that there was no exception to any instruction except the instruction that there was no evidence that would entitle the defendants to recover any amount under the pleadings. The others were the general exceptions which this court has so often held did not amount to an exception under the law. This instruction, we think, under the testimony was correct.. The appellants insist that
We think the jury were not misled by the instructions of the court, and the judgment will therefore be affirmed.
Anders, Scott and Gordon, JJ., concur.
Hoyt, 0. J., dissents.