45 Wash. 63 | Wash. | 1906
The plaintiffs, N. G. Wheeler and F. C. Wheeler, copartners as Wheeler Brothers, and Florence Wheeler and Minnie Wheeler, their respective wives, commenced this action against the city of Aberdeen, a municipal corporation, John Lindstrom and James Birmingham, to recover damages for the destruction of a certain frame building, together with its contents, and for other injuries. John Lindstrom and James Birmingham were respectively the mayor and acting marshal of the city of Aberdeen.
The complaint alleges that, on October 10, 1905, the plaintiffs held an unexpired lease on a certain lot in the business section of the city of Aberdeen; that they were the
The defendants admitted the destruction of the building, but denied all the wrongful acts alleged in the complaint. For a first affirmative defense they alleged, that on October 16, 1903, the city of Aberdeen was visited by a great fire, which destroyed the entire business district; that on October 17, 1903, a mass meeting of citizens requested the city council to enact an ordinance creating fire limits; that on said October 17, 1903, at a special meeting, the city council passed ordinance No. 372, entitled: “An ordinance creating fire limits and dividing the city of Aberdeen into two building districts, and providing for the construction, alteration, and repair of buildings therein,” etc.; that on October 19, 1903, the city council, at a special meeting, passed the following resolution:
“Resolution. Be it resolved by the City Council of the City of Aberdeen, as follows:—
“That until such time as an ordinance can be enacted and put in force, no person, firm or corporation shall be permitted*68 to use any of the streets or alleys within the district hereinafter described for the deposit or unloading of any lumber or building materials, without first obtaining a written permit for a temporary structure from the city clerk. The following is the district hereinbefore referred to: [Here follows description of the district.]
“That for the period of time above referred to, no permit shall be granted for any structures or buildings within said area but temporary structures not exceeding one story in height, and the persons applying for such permit to erect such temporary structure or building shall make application therefor in writing, signed by him or his agent in substance as follows:
“Application for permit to erect a temporary building.
“To the City of Aberdeen: I hereby apply for a permit to erect a temporai’y building, in accordance with the outline of plans hereto attached, upon the premises described in the annexed schedule. And in consideration of such permit being granted, I hereby undertake and agree with the city of Aberdeen to remove said temporary structure within six months after this date, or to make the same conform with the ordinances of the city of Aberdeen then in force, with reference to fire protection and in event of my failure so to do, within the said time I hereby waive all claim for damages, which may accrue to me or my assigns by reason of the removal or destruction of said buildings, by the city authorities, after said date. . . .
“That upon filing such application with the city clerk, duly signed, with an outline of plan of the proposed temporary building the city clerk shall issue to such applicant a permit, . . . ”
that the plaintiffs had full knowledge and notice of ordinance No. 372, and the above resolution, both of which were published in the official paper of the city; that the city council, at a regular meeting held on October 21, 1903, passed ordinance No. 375, substantially the same as ordinance No. 372; that ordinance No. 375 was published on October 24, 1903, and is still in full force and effect; that plaintiffs’ property is, and was, located within the first building district created by such resolution and ordinances; that the resolution was
For their second affirmative defense the defendants alleged that, on or about August 10, 1905, when the defendants, in pursuance of the resolution of August 2, 1905, were about to destroy the building, the plaintiffs herein filed in the superior court of Chehalis county a complaint and application
The above statement discloses the situation surrounding the parties. It is undisputed that the fire took place as alleged; that the ordinances and resolutions were passed; that the building permit was issued; that the contract was actually signed by plaintiffs (although they allege in their reply and testify that it was signed under duress) ; that the building was erected by plaintiffs; that notice for its removal was given; that the injunction suit was instituted; that final judgment was rendered therein; and that the appellants destroyed the building. The record, however, shows much dispute as to the validity of the ordinances, resolutions, building permit, and plaintiffs’ agreement with the city; as to the effect of the judgment in the injunction suit; as to the amount of damages sustained by plaintiffs; and as to the liability of the appellants therefor.
The first contention of the appellants is that the trial court erred in refusing to discharge the jury and dismiss the action. Assuming that the appellants, as they contend, were entitled to destroy respondents’ building, we think it was their duty to do so in a careful and prudent manner, without unnecessary damage or injury to the material of which it was constructed, or to the furniture, fixtures, and merchandise which it contained. There is evidence tending to show that they summarily proceeded with haste and violence, after the dissolution of the injunction, and that in so doing they unnecessarily destroyed and rendered worthless the material of which the building had been constructed, and that they also seriously and needlessly damaged the respondents’ furniture, fixture's, and merchandise. This they were not entitled to do. If, in fact, they did any unnecessary damage, they should be held liable therefor. Although the
Appellants further contend that the trial court erred in permitting the respondent N. G. Wheeler to testify in rebuttal that he signed the contract for removal and waiving damages, under circumstances tending to show fraud or duress on the part of the city, insisting that the court thereby opened a question which had been concluded by the former adjudication in the injunction suit. By their answer the appellants pleaded all of the issues in the former action, and also set forth at length the findings of fact, conclusions of law and final judgment entered therein. The 7th finding in such action pleaded herein reads as follows:
“That on the 21st day of October, 1903, the plaintiffs herein, N. G. Wheeler and F. C. Wheeler, co-partners as Wheeler Bros., applied to the city of Aberdeen for a building permit to erect a temporary wooden building not exceeding one story in height, and thereupon the said Wheeler Bros, entered into an agreement in writing with the city of Aberdeen wherein they agreed, in consideration of such permit being granted, to remove such temporary building within six months after said date, or cause the same to conform to the ordinances of the city of Aberdeen with relation to fire protection which might then be in force, and thereupon the city of Aberdeen granted to the said Wheeler Bros, a permit for a temporary building; that a copy of said agreement and permit is set out in paragraph 6 of section 8 of the defendants’ answer, and that said agreement was entered into and permit granted to the plaintiffs under the provisions of the resolution passed by the city council on the 19th day of October, 1903; that at the time of taking out said building permit for said temporary building, and at the time of signing of said agreement the plaintiffs, Wheeler Bros., well knew that the city of Aberdeen was contemplating the enactment of an ordinance for fire protection in the city of Aberdeen covering the district described in the resolution of October 19,*73 1903, the city authorities deeming ordinance No. 372 to be void on account of having been passed at a special meeting of the council.”
The reply did not deny that this finding had been made, and it must be taken as admitted. Hence, the question as to whether the respondents made the agreement was concluded by the former adjudication. Under the issues raised by the pleadings in this case, the trial court erred in admitting evidence to show duress or fraud on the part of the city.
It is further contended that the trial court erred in admitting evidence of loss of profits to the respondents3 business by reason of their being compelled to change their location. The record in the former action, pleaded herein, shows a final adjudication to the effect that the building existed in violation of law; that it was an illegal structure, and that the appellants should not be enjoined from removing it. The respondents, therefore, had no vested right to its occupancy. It became necessary for them to discontinue their business in that location, and they could not recover from the appellants any damages to their business by reason of loss of profits that resulted from a change of location.
The respondents claim the injunction suit did not become res adjudicata for the following reasons: (1) That the answer of the appellants failed to allege that no appeal from the judgment had been taken; (2) that an appeal had in fact been taken and was pending in the supreme court; (3) that the parties to the judgment and to this action are not the same; (4) that the cause of action in the injunction suit was different from the cause-of action herein, and (5) that the judgment was pleaded as a complete defense, while it is only a partial defense, if any.
Each and all of these contentions are without merit. Tie answer alleged that the judgment was in full force and effect, and that it had not been vacated, reversed, or set aside; while the reply, although making certain allegations showing that
If it appears from the evidence that the respondents are entitled to certain damages by reason of the wanton and unnecessary manner in which the appellants damaged their merchandise, furniture, and fixtures, and the defense of res adjudicate so pleaded fails to completely prevent any recovery by respondents, the defense should not for that reason be entirely ignored or stricken on the theory that it was only partial. From the issues raised by the pleadings, we conclude, as a matter of law, that the defense of res adjudicate became effective for the purpose of preventing the respondents from recovering any damages for loss of profits, and the trial court erred in admitting evidence tending to show the same.
It is further contended that the trial court erred in admitting evidence (1) tending to show the cost of removal of the respondents’ merchandise, and (2) in permitting the respondents to show, by cross-examination of Mayor Lindstrom, that parties other than the plaintiffs were permitted to
Other assignments of error presented need not be considered, as they will not arise upon a new trial which must be ordered. From the pleadings and record, we conclude that, by reason of the former adjudication, which is not denied by the reply, the appellants were entitled to destroy the respondents’ building, and that by reason of such right the respondents are not entitled to recover for its value as a building, although they may recover damages for any unnecessary injury done to the materials of which it was constructed. The respondents are not entitled to recover damages to their leasehold estate, and the trial court properly withdrew the consideration of any such damages from the jury. It also properly withdrew from the jury the consideration of any damages which the respondents claim by reason of mental distress, shame, humiliation, and disgrace. The only damages which we think the respondents would be permitted to recover
The judgment is reversed, and the cause remanded with instructions to grant a new trial.
Mount, C. J., Root, Dunbar, Hadlet, and Fullerton, JJ., concur.