Brechlin v. Night Hawk Min. Co.

• Citation: 49 Wash. 198,94 P. 928
• Parties: BRECHLIN v. NIGHT HAWK MINING CO.
• Decision Date: 02 April 1908
• Court: Washington Supreme Court

94 P. 928

49 Wash. 198

BRECHLIN v. NIGHT HAWK MINING CO.

Supreme Court of Washington

April 2, 1908

Appeal from Superior Court, Okanogan County; R. S. Steinter, Judge.

Action by Julius Brechlin against the Night Hawk Mining Company. From a judgment for defendant, plaintiff appeals. Affirmed.

E. W Taylor and E. Fitzgerald, for appellant.

G. V Alexander, for respondent.

HADLEY, C.J.

This action was brought to recover the sum of $3,000 alleged to be due as the purchase price of a number of mining claims which the plaintiff claims were sold by him to the defendant corporation. The complaint alleges that on July 9, 1902, for and in consideration of $3,000 to be paid by the defendant to the plaintiff, the latter agreed to sell, and did sell, the claims to the defendant, the said sum to be paid on or before February 1, 1903. It is further alleged that afterwards, on the 11th day of January, 1903, the defendant agreed to pay the $3,000 as follows: $1,500 on or before the 15th day of February, 1903, and $1,500 on or before the 15th day of April, 1903, all of which it has failed to do. The agreement of July 9, 1902, to which the complaint refers, was in writing, and was made with the plaintiff by one Wehe, who was at the time the president of the defendant company. The writing was drawn upon a printed letter head of the defendant company, and, omitting the names of the officers printed upon the page, the instrument was as follows:

'Night Hawk, Wash., July 9th, 1902.

'I agree herewith to pay Julius Brechlin five thousand dollars for his five mining claims, and all land lying in between Night Hawk Mining Co. claims and all his holdings in the Night Hawk Mining Comp. in shares the payment to be two thousand on or before November first, 1902, and the balance of three thousand dollars on or before February first, 1903.

A. M. Wehe.

'Witness: A. George Wehe.'

Upon the above written agreement the plaintiff, in the year 1903 brought an action against the defendant, and alleged that at the time the agreement was made the plaintiff owned 56,566 shares of the capital stock of the defendant company; that said Wehe made the contract on behalf of the defendant; that the defendant had paid $1,000 thereon, and judgment for $4,000 was asked. The second and modified promise to pay as alleged in the present action was by way of letter written by the secretary of the defendant company at Milwaukee, Wis., and directed to the plaintiff at Night Hawk Wash. The plaintiff had this letter in his possession at the time he brought the former suit. That suit came on for trial in 1905, and objection was made to the admission of any testimony on the ground that the complaint did not state facts sufficient to constitute a cause of action. The court sustained the objection, and rendered judgment against the plaintiff. No appeal was taken from that judgment, and it was in full force and effect when the present action was brought. In the present action to defendant interposed three defenses: (1) A general denial of liability; (2) that the alleged contract of July 9, 1902, was entered into between the plaintiff and said Wehe on account of Wehe himself, and that he had no authority to make the same on behalf of the defendant; (3) the judgment in said former action was pleaded as res judicata. The trial was by the court without a jury, and the court found the necessary facts to establish all of these defenses. Judgment was rendered that the plaintiff shall take nothing by the action, and the plaintiff has appealed.

The assignments of error are based upon the court's findings and conclusions. It is contended that the defense of res judicata was not established. The evidence certainly shows that the parties to the former action were the same as in the present one, the appellant being plaintiff and the respondent defendant in both cases. The cause of action in each case was the same, viz., the recovery of the purchase price of certain mining claims, the only difference between the two actions being that in the present action the demand is for the purchase price of the mining claims alone, while in the former one it was for the purchase price of the mining claims, and also for that of 56,566 shares of the capital stock of the respondent company claimed to have been held by appellant and sold by him to the respondent company...