Burch v. Rice
| Decision Date | 05 October 1950 |
| Docket Number | 31265. |
| Citation | 222 P.2d 847,37 Wn.2d 185 |
| Parties | BURCH, v. RICE et al. |
| Court | Washington Supreme Court |
Department 2.
Harold M. Gleeson, Spokane, for appellant.
Keith Winston, MacGillivray & Repsold, Spokane, for respondents.
Plaintiff instituted this action against defendants for the purpose of securing a decree declaring him the owner of a one-half interest in a restaurant and for an accounting. At the conclusion of the trial, the court entered findings of fact and conclusions of law. Thereafter, a decree was entered dismissing plaintiff's action and confirming title to the property and business in defendants. Plaintiff then appealed to this court. His assignments of error, seventeen in number call in question the findings of fact and conclusions of law and challenge the correctness of the decree.
We shall summarize the history of the business venture and the evidence produced by the parties to this action. The property is a restaurant known as Mother's Kitchen, located at West 24 Riverside in Spokane. The restaurant was acquired by respondent's parents, Lewis T. and Grace E. Williams, in 1926. At that time it was in a small room ten by fifteen feet, and had but seven or eight stools for customers. Shortly thereafter, the size and accommodations were increased by adding a small bedroom and a fourteen by twenty-four foot addition to the kitchen. In 1933, the restaurant could accommodate about thirty-two persons. Respondent was employed by her mother in late 1928 or the early portion of 1929, and continued her employment for a greater portion of the time until 1946. May 19, 1930, respondent received a bill of sale to the restaurant from her parents. The bill of sale, recorded May 24, 1930, recited a purchase price of $1,500, consisting of cash in the sum of $710, and the assumption of obligations in the amount of $790. December 7, 1932, appellant and respondent were married. At the end of the year, they took over the management of the restaurant. During the time appellant and respondent lived together, the business property was improved. New booths, cabinets, counters, refrigeration and ice-making machinery were installed, as were facilities for the dispensing of beer. The kitchen was renovated by laying new floors, the purchase of new stoves, and the installation of a sink. The front was modernized. Two restrooms were added. The dining room was enlarged. A basement was dug and a steam boiler installed. The parties were without resources in 1933. They did not have a bank account until respondent opened one in her own name in 1934 or 1935. Appellant was not authorized to draw checks on the account. All licenses for conducting the business were in respondent's name, doing business as Mother's Kitchen.
Appellant's evidence showed that he performed most of the work of remodeling at a cost of $15,000. The evidence introduced by respondent showed that the improvement placed on the property was by herself, and amounted to between $3,000 and $4,000; that appellant never put any money into the enterprise and did very little of the work in remodeling and rebuilding the restaurant. In 1935, the parties secured a lease from the owners of the real property upon which the restaurant stood, for a period of four years, with an option to purchase. Respondent exercised this option in 1939.
In December, 1963, respondent started divorce proceedings. At this time a property settlement between them was drawn and signed by each of them. Under this agreement the appellant was to receive some mining claims, all his tools, a car, a truck, and $50 a month from respondent. On the other hand, appellant transferred to respondent Mother's Kitchen, she assuming the indebtedness of the business. The agreement, signed and acknowledged December 23, 1936, reads:
'This Agreement, made and entered into this 23rd day of December, 1936, by and between Zada Burch, hereinafter called first party, and V. A. Burch, hereinafter called the second party, Witnesseth:
'Whereas, the parties hereto are husband and wife and disagreements have arisen between them which makes it seem advisable to have a full and complete property settlement between the parties.
'In consideration of the above, second party sells, assigns, sets over and transfers unto first party all other property of every kind, character and description belonging to the parties hereto, more specifically including that said restaurant known as Mother's Kitchen, situate at West 24 Riverside Avenue, Spokane, Washington, but first party assumes and agrees to pay all indebtedness now due or owing in connection with said restaurant business.
'It is understood between the parties hereto that they have a claim against Brown-Johnston Company in the sum of One Hundred ($100.00) Dollars and in the event said claim is collected by second party, he shall turn the proceeds thereof over to first party.
'It is understood between the parties hereto that this is a full and complete settlement of all property rights between the parties hereto and in the event that either party hereto, shall institute an action for divorce or separate maintenance against the other party hereto, that neither party hereto shall claim or demand any suit money, alimony, or attorneys fees in such action for divorce or separate maintenance.
'It is further understood and agreed between the parties hereto that any property hereafter acquired by either party shall be the sole and separate property of the party so acquiring it, free and clear of any claim of the other party hereto.
'In Witness Whereof, the parties hereto have set their hands the day and year first above written.
'Mrs. Zada Burch
'First Party
'V. A. Burch
'Second Party'
On New Year's Eve, they were reconciled and lived together at Mother's Kitchen for about six months, at which time the respondent commenced another divorce proceeding. An interlocutory decree was entered October 7, 1937, which did not change the status of Mother's Kitchen. After their separation in June 1937, appellant returned to the restaurant to pick up some of his belongings. At this time, respondent gave him a check for $500, which she testified was a lump sum payment of the money provided for in the settlement. This check was noted 'C. E. Burch account.' It was admitted by both that they owed C. E. Burch $500, but respondent claimed that she had previously given appellant the money to pay the debt which he had not done, so that this check was...
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White v. White
...re Marriage of Shannon, 55 Wash.App. 137, 140, 777 P.2d 8 (1989) (same). 19. Baker, 80 Wash.2d at 745, 498 P.2d 315; Burch v. Rice, 37 Wash.2d 185, 190, 222 P.2d 847 (1950); Witte, 21 Wash.2d at 125, 150 P.2d 595; In re Marriage of Brooks, 51 Wash.App. 882, 886, 756 P.2d 161 20. In re Marri......
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Fleck v. Fleck, 7341
... ... In Burch v. Rice, 37 Wash.2d ... Page 773 ... 185, 222 P.2d 847, 849, the Supreme Court of Washington said: ... 'The rule is well settled in this state ... ...
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