29 Wash. 321 | Wash. | 1902
The opinion of the court was delivered hy
This is an action for the recovery of money, brought by respondent against appellant. Respondent in her complaint alleges in substance: That on .and prior to the 28th day of October, 1899, she was the owner in her own individual and separate right of an undivided one-sixth interest in and to certain mining claims situate in Robbins mining district, in Idaho' county, state of Idaho', said claims being respectively known as “Big Buffalo',” “Merrimac,” and “Oro Bino;” that, at the time mentioned, J. H. Rice, Perry Mallory, and J ames J ustus owned, together’ with respondent, an undivided half interest in the whole of said claims, less an undivided interest adjudged to belong to one Harry Glidden, to be deducted from the interest of said Rice; that on said date respondent and said Rice, Mallory, and Justus entered
A number of distinct errors are assigned, but our views of this case are such that wei do not deem it necessary to discuss them all. It will be observed from the statement of the complaint that the theory of respondent is that the consideration running to appellant for his contract to p>ay her $11,875 was that she should sign the option contract, and also the deed to be placed in escrow. Respondent in her testimony says it was also1 based upon the consideration that she was¡ to be instrumental in getting the other parties interested with her to sign the option contract, and also the deed. But it is not so alleged in the complaint. The allegations of the complaint are to the effect that the sole consideration for the promise in the second contract was that respondent should sign the option and the deed. Respondent was to- share with her co-contractors in the proceeds, of the option contract proper, which privilege became to her a consideration for her execution thereof. The second contract was theretfore neither more nor less than a promise to pay her a sum in addition to that named in the opjtion contract, for which she gave no consideration other than that given for the option contract itself, viz., the signing of the option and the deed. The two contracts were therefore as one
Respondent contends that the pleadings are such that the allegation in the complaint that the payment was made in accordance with the terms of the option is admitted by the answer. The answer specifically denies that after the making of said contract, or any contract set out in the complaint, appellant ever made any second payment as provided therein. The complaint alleged that appellant “did on April 16, 1900, pay said sum of eighty-seven hundred and fifty ($8,750) dollars upon said option in accordance with the terms of said option.” The answer certainly denies that allegation. Respondent now contends that said allegation in the complaint was only a legal conclusion, was therefore immaterial, and that the denial thereof raised no issue. It is contended that the further allegation that the $50,000 was paid on account, of and in accordance with the option is the necessary averment of the fact that the $8,750 was paid under the option, that, the words quoted from the complaint are but
. . those important and substantial facts alone should be alleged which either immediately form the basis-of the primary right and duty, or which directly makeup; the wrongful acts or omissions of the defendant, and not t-he details of probative matter or particulars of evidence by which these material elements are to be established. This doctrine applies to all classes of actions, and! if strictly enforced it would render the pleadings simple, and the legal issues at least clear, certain, and single.” Pomeroy, Demedies & Demedial Dights (3d ed.)r § 526.
The answer was construed by the trial court as raising-the issue when the question was suggested upon the trial.. Do exception was taken to this ruling -of the court, and' respondent proceeded without remonstrance to the examination of her witnesses upon the theory that it was necessary for her to show the performance of the condition-precedent. We think the denial in itself sufficient, but in any event, if the point had been urged, doubtless the court would upon application have permitted an amendment making the denial more comprehensive, since it is-manifest from the pleading that it was the bona fide intention of the pleader to- deny those allegations so mate
“If the plaintiff herself showed a state of facts upon which she should not recover, the defendants were entitled to the benefit of it although they had not pleaded the same as a defense.”
To the point that evidence once introduced without objection becomes the property of the case, and that the legal effect which follows from it shall be applied to the case, see Slingluff v. Builders’ Supply Co. 89 Md. 557 (43 Atl. 759); Flora v. Carbean, 38 N. Y. 111; In re Yates, 99 N. Y. 94 (1 N. E. 248).
It will be observed from the statement of the pleadings that appellant avers in his answer that respondent signed and delivered to him a receipt in full for all sums of money due, owing, or payable on account of any business transaction arising out of the two contracts set out in the complaint, The receipt signed by respondent was in the following words:
“Spokane, Washington, April 14, 1900.
To- the Exchange Rational Bank, Spokane, Wash.
Dear Sirs: Whereas we have received full considera^ t-ion and payment from Charles Sweeny for the conveyance of the ‘Big Buffalo/ ‘Merrimac’ and ‘Oro Eino’ lode claims, situate in Robbins Mining District, Idaho, county, State of Idaho, such conveyance being in escrow in your bank, you are hereby authorized and directed to deliver the said conveyance in escrow to- Charles- Sweeny,, his heirs and assigns.”
It is true, this paper, for the purpose of this consideration, was a receipt, and as such was subject to explanation by oral testimony. But the paper itself and the circumstances attending the signing and delivery of it were evidentiary, as bearing upon the real agreement theretofore made, and in pursuance of which the paper was signed and delivered. The paper was drawn by appellant, and shows clearly what was his understanding of thel new deal. It was signed by respondent under the direction and advice of her husband and agent, and, she being fully chargeable with knowledge of its contents and its legal effect, it became at once evidence of the real agreement between the parties. If respondent understood the matter otherwise than as stated in the paper, she should have so announced before signing it. If she expected to make any demand inconsistent with the terms there stated, it was her duty to make it known before signing and delivering it, and accepting the money which was paid relying thereon. Had she made known such intention, appellant might then have declined to pay any portion of the $50,000, which it is highly probable he would have done, and thus have saved the whole sum to himself, which subsequent developments show he would have saved for all time. Under all these circumstances, it seems to us unconscionable that respondent should now be heard to> say that she did not intend to' do' what the paper signed by her says she did.
The judgment is reversed and the cause remanded, with instructions to the lower court to enter judgment that respondent shall take nothing, and dismissing the action.
Beavis, O. T., and Bullerton, Mount, Anders, White and Dunbar, JJ., concur.