36 Wash. 84 | Wash. | 1904
The plaintiff in this action, the Traders National Bank, brought the suit against J. B. Woodley, who is the respondent here, and also joined as defendant Kaehrlis Zilke, who is the appellant here. Certain other persons were also joined as defendants. The complaint alleges, that the plaintiff has in its possession $900 in money; that said Woodley claims to be the owner and entitled to the possession thereof, and has demanded that plaintiff shall pay it to him; that the other defendants also claim to be the owners, and have demanded that it shall be paid to them. Disclaiming any interest in the money, the plaintiff brought it into court, deposited ‘ it with the clerk, and asked that the defendants should interplead, and that their conflicting claims should be determined in this action. The said defendant Zilke answered separately, alleging that his co-defendant Woodley has no interest in the money, and further that the other co-defendants have, in writing, assigned to Zilke their interest therein. He asks that the money shall be adjudged to be his. and that it shall be delivered to him.
The said defendant Zilke, for himself and his assignors, replied to the answer of Woodley, alleging ignorance and illiteracy on the part of the defendants, and false and fraudulent representations on.the part of Woodley, by which, it is claimed, they were deceived and misled as to the location, character and environment of said timber claims. He demands judgment against Woodley for $250, being the amount of $150 paid upon the contract, together with the sum of $100 applied upon his note at the bank, as aforesaid. Before proceeding with the trial, the plaintiff bank, by consent of all parties, was dismissed from the action, and absolved from any liability in the premises. The cause was then tried by the court without a jury, upon the issues formed by the aforesaid pleadings between the defendants, and resulted in a judgment that J. B. Woodley & Co. are the owners, and are entitled to the possession of said sum of $900, and it was ordered that the clerk shall pay the same to them. From said judgment and order said defendant Zilke has appealed.^
It is assigned that the court erred in refusing appellant a jury trial. The record shows that, some time before the trial, a written demand for a jury trial was filed, accompanied with the payment of $12 as a jury fee. When the cause was about to be called for trial, the judge who was then presiding over jury trials in that court suggested that he thought the issues to he tried Avere of an equitable nature, and that the cause should be transferred to the judge who was presiding over the trial of equity causes. He, at the same time, suggested that, if appellant desired to save the question as to his right to a jury trial, he might do so by a motion in the other de
It is next assigned that the court erred in denying appellant’s motion for judgment upon the pleadings. This contention is based upon the theory that the pleadings show no title to the money in respondent. It is urged that the pleadings show the drafts to have been left with the bank by appellant and his assignors merely for collection, and that there was no assignment of the fund to respondent. Both parties were at the bank. The instructions of both to the bank were to credit respondent with $1,000 when the money was collected. With this arrangement in view, the bank then loaned respondent $100. In equity, and as between the parties, we think the title to the money then passed to the respondent. Of course, if the payees of the bank drafts had, after that time, notified the bank that drew them not to pay them
Complaint is made that the court refused to permit appellant to introduce evidence in relation to the timber locating contract heretofore mentioned. The fact that such a contract was executed by the parties was not in actual dispute, and it was the court’s theory that respondent’s claim for recovery was not based upon that contract, but upon the assignment of the fund at the bank. We think that view was correct, and that no prejudicial error was committed in refusing the testimony.
It is further claimed that it was error to confine the testimony of appellant concerning false representations of respondent as to the timber claims to the period after the parties returned from viewing the land. ■ We think the court was right. Any representations made before the parties viewed the land were not pertinent, for the reason that, after viewing the land for themselves, they no longer had a right to rely upon such representations, and they thereafter proceeded in the light of their own knowledge from actual view of the premises and surroundings. This court has frequently held that one who has
It is complained that it was error to enter judgment on the evidence submitted. We shall not undertake to say that the court was in error in this particular. The parties were taken to view the land, and located thereon. After their return, they consulted the officials at the United States land office concerning their rights, and made further payment upon the contract. Afterwards they directed the collection and application of the funds to the payment of the balance due under the contract as heretofore stated. In directing the balance to be paid to respondent they must be held to have acted with all the facts before them, and we see no reason why they shall not now be bound by the assignment of their funds thus deliberately made.
It is assigned that the court erred in entering an order that the money be paid to J. E. Woodley & Co., inasmuch as J. E. Woodley only is a party to the proceeding. It is however adjudged that the money does not belong to appellant, and we are unable to see that he has cause to complain, if the court directs it paid to the firm named in the original contract out of which the assignment of this money arose.
The judgment is affirmed.
Fullerton,-C. J., and Dunbar, Anders, and Mount, JJ., concur.