Bain v. Wallace

• Citation: 10 P.2d 226,167 Wash. 583
• Decision Date: 08 April 1932
• Docket Number: 23643.
• Parties: BAIN v. WALLACE et al.
• Court: Washington Supreme Court

10 P.2d 226

167 Wash. 583

BAIN v. WALLACE et al.

No. 23643.

Supreme Court of Washington

April 8, 1932

Department 2.

Appeal from Superior Court, Cowlitz County; Homer Kirby, Judge.

Action by Perry Bain against D. L. Wallace, Dora A. Wallace, and Wallace & Bain, copartners, and another. Judgment for plaintiff, and defendants named appeal.

Affirmed.

HOLCOMB J., dissenting.

Imus &amp Imus and Atwell & Moore, all of Kelso, for appellants.

Dwinell & McCoy, of Longview, for respondent.

BEALS J.

D. L Wallace and Dora A. Wallace, his wife, being the owners of a dairy ranch in Cowlitz county, at some time prior to April, 1924, formed a partnership agreement with defendant Clyde Bain, according to the terms of which Mr. Bain should undertake the active management of the ranch in an endeavor to make the same a paying proposition. During the month of April, 1924, Mr. Bain hired his brother, Perry Bain, plaintiff in this action, to work on the ranch, and plaintiff performed labor thereon until the spring of 1927, when his employment ceased. Plaintiff performed work on the farm during the summers of the years 1928 and 1929, and from the spring of 1930 to March, 1931, he worked steadily on the ranch. About March 1, 1931, as the result of disagreements between Clyde Bain and the defendants Wallace, Mrs. Wallace took over the operation of the ranch for the purpose of liquidating the partnership affairs and dissolving the association. Shortly thereafter plaintiff was paid $200, and defendants Wallace admit a further indebtedness to plaintiff in the sum of $275 for work performed subsequent to 1927, which amount they tendered into court for plaintiff's benefit. Plaintiff claimed back wages, dating from the commencement of his employment in the year 1924, in the sum of $2,237, and instituted this action against Mr. and Mrs. Wallace and his brother, Clyde, as copartners as 'Wallace & Bain,' for the purpose of recovering judgment for the amount which he contends is due him. It appears that May 1, 1931, defendant Clyde Bain, assuming to act for the partnership, executed a promissory note for $2,237 in plaintiff's favor, and in his complaint plaintiff alleged the execution of this note 'as evidence of said indebtedness.'

Defendant Clyde Bain answered, admitting the allegations of plaintiff's complaint, and confessing judgment in plaintiff's favor, both on his own behalf and on behalf of the copartnership of Wallace & Bain. Defendants Wallace answered, denying any indebtedness to plaintiff, save as hereinabove set forth, affirmatively pleading payment of all sums due plaintiff; that plaintiff's claim was barred by the statute of limitations; that the note hereinabove referred to was fraudulently executed by Clyde Bain; and that Clyde Bain had no authority to make on behalf of the partnership any note or acknowledgment of indebtedness--these defendants praying for cancellation of the note and for judgment in their favor. Plaintiff replied to the answer of defendants Wallace, pleading by way of an estoppel against defendants' plea of the statute of limitations that defendants and the partnership had repeatedly promised to pay plaintiff's claim for labor, and had admitted the indebtedness to him, thereby causing him to delay suit on his claim by an action at law for a considerable period of time.

Upon the issues so made up, the action was tried to a jury, which returned a verdict in plaintiff's favor in the sum of $2,237 as against defendant Clyde Bain, and, as against defendants. Wallace and the copartnership of Wallace & Bain, a verdict in the sum of $1,650. From a judgment entered upon this verdict, defendants Wallace appeal.

Appellants assign error upon the failure of the trial court to sustain their objection to the introduction of any testimony tending to prove, as against them, an equitable estoppel operating against their plea of the statute of limitations, and in refusing to withdraw from the consideration of the jury respondent's claim for wages for the years 1924 to 1927, inclusive; in denying appellants' motion for judgment in their favor notwithstanding the verdict; in submitting the case to a jury over appellants' objection; in receiving in evidence the note referred to in respondent's complaint; in giving certain instructions to the jury; and in submitting to the jury two special interrogatories.

Appellants contend that by the pleadings in the action subsequent to the complaint the action became one of equitable cognizance, and that the trial court erred in submitting the same to a jury pursuant to respondent's demand for a jury trial. Appellants admit that the complaint herein states a cause of action at law, triable to a jury, but contend that, as by their answer appellants pleaded fraud and conspiracy between respondent and defendant Clyde Bain and asked for cancellation of the note referred to in respondent's complaint, and as respondent in his reply pleaded an equitable estoppel against appellants' plea of the statute of limitations, the action became equitable in its nature and should have been tried to the court, and that, in submitting the disputed questions of fact to a jury, the trial court committed reversible error. The action was properly tried to a jury upon respondent's demand. The pleadings subsequent to the complaint presented equitable issues which were purely incidental to the determination of the law action pleaded by respondent in his complaint. Northern Life Ins. Co. v. Walker, 123 Wash. 203, 212 P. 277; Fleming v. Buerkli, 159 Wash. 460, 293 P. 462. It is true, as argued by appellants, that, in determining whether or not the action should be tried to a jury upon demand of one of the parties, the court must consider, not the complaint alone, but the pleadings in their entirety. Lindley v. McGlauflin, 57 Wash. 581, 107 P. 355; Price v. Chambers, 148 Wash. 170, 268 P. 143; Theodore v. Washington National Inv. Co. (Wash.) 2 P.(2d) 649. We are satisfied, however, that the trial court, after considering all the pleadings, properly ruled that appellants' motion to strike respondent's demand for a jury trial should be denied. Cancellation of the note was a matter merely incidental to respondent's claim at law against appellants for wages. Assuming that a verdict in appellants' favor would not cancel the note, relief incident to such a verdict would amply protect them. The accounting features of the case were so simple and incidental to the main issue as to keep the case without the principle of the case of Lindley v. McGlauflin, supra, and the case of Boozer v. Boozer, 139 Wash. 34, 245 P. 403; and, as to the estoppel pleaded by respondent, it is the law that such a plea, whether by answer or reply, does not necessarily convert an action from one at law to an equitable proceeding, triable only to the court. Where the question is doubtful, the right to a jury trial is always preserved.

Appellants next contend that the trial court erred in refusing to sustain their objection to the introduction of any testimony in support of respondent's plea of equitable estoppel and in refusing to withdraw this issue from the consideration of the jury. It is clearly established by the evidence that respondent's employment from 1924 to the spring of 1927 was not so connected with his subsequent employment as to form one connected contract, and that respondent's claim for wages earned prior to the spring of 1927 in barred by the statute of...