44 Wash. 560 | Wash. | 1906
This was an action for an accounting. From a judgment in favor of respondent this appeal is prosecuted.
Respondent and appellants entered into an oral agreement to engage in the business of general contracting and building. White was to furnish the money, McCleary solicit business and make estimates on prospective contracts, and respondent was to have charge of the construction work. Respondent alleges that the net profits were to be equally divided among the three after he had been paid at the rate of $5 per day for each day employed on contract work. When the ease came on for trial, it appears that the only question involved was as to the allowance of the $5 per day to respondent, he maintaining that he was entitled to that upon all work, while appellants claimed that he was entitled to this allowance upon one certain contract only. The case was tried before the court without a jury. Findings and conclusions were made, and exceptions to material portions thereof properly taken by appellants.
One of the principal errors assigned is upon the action of the trial court in not granting appellants a continuance on account of the absence of appellant White. It appears that when the case was first called for “setting,” in October, 1905, it was continued at appellants’ request, and was afterwards set for December 26. When this day arrived, the court, being otherwise occupied, continued the case until after the holidays, at which time appellant White filed a motion for a further continuance, setting up as a cause his sickness and absence from the state. The case was then reset for January
There is some force in this contention. Ordinarily the court will not go into a trial when one of the parties, on account of sickness or other unavoidable cause, is unable to be present. But there are, and must of necessity be, some exceptions to the rule. The rights of the other party in the premises and all of the matters and circumstances connected with the case should be taken into consideration by the trial court, and in the light of all of these matters said court should grant or deny the application for a continuance according as he believes the interests of substantial justice demand. In this case the transactions sued upon had oc
Upon the question as to whether respondent was entitled to $5 a day upon one or all of the contracts, there was a conflict in the evidence, and we are unable to arrive at a different conclusion from that reached by the superior court.
It is suggested that some of the evidence introduced was incompetent. This court has frequently announced that, where a case is heard by the trial court without a jury and tried here de novo, incompetent evidence will not be considered, and its introduction in the trial court will ordinarily not be deemed cause for a reversal.
Appellants admitted an indebtedness to respondent of $166.43 and $9 costs, and tendered and paid that amount into court. After the decision was rendered, the respondent received said money from the clerk and receipted therefor. The judgment has the following recitation:
“It is further ordered that, the money paid into the registry of the court, to wit, $175.45, by defendants, be paid to plaintiff Traynor, and applied on account of the judgment hereby granted him against said defendant White.”
Appellants claim that they had given notice of appeal and filed a supersedeas bond before the order of the court was made allowing respondent to withdraw the $175.45, and urge that this action of respondent was an acceptance of the tender
Finding no reversible error in the record, the judgment .of the trial court is affirmed.
Crow, Fullerton, Hadley, and Dunbar, JJ., concur.
Mount, C. J. and Budkin, J., took no part.