Chaffee v. Chaffee, 29099.

Decision Date09 December 1943
Docket Number29099.
Citation19 Wn.2d 607,145 P.2d 244
PartiesCHAFFEE v. CHAFFEE et al.
CourtWashington Supreme Court

As Amended on Denial of Rehearing Jan. 29, 1944.

Department 1.

Suit by Perry J. Chaffee against Stephen E. Chaffee and others to recover from named defendant for work and labor, to obtain a conveyance of land, to cancel a quitclaim deed, and to cancel a written agreement, and for an accounting, wherein defendants other than Milton Lewis filed cross-complaints against plaintiff for breaches of contract. From part of a judgment, named defendant appeals.

Judgment set aside and cause remanded for further proceedings.

MALLERY J., dissenting

Appeal from Superior Court, Yakima County; N. K Buck, Judge.

Stephen E. Chaffee, of Sunnyside, for appellant.

J. P Tonkoff, of Yakima, for respondeny.

SEINERT Justice.

Plaintiff brought suit upon two causes of action set forth in his complaint. In the first of these causes, he sought to recover from one of the defendants, Stephen E. Chaffee, the sum of $750 for work and labor alleged to have been performed by the plaintiff for that defendant. In his second cause of action he sought to compel, as against the defendants Stephen E. Chaffee and Milton Lewis, (1) conveyance to himself of a ninety-five acre ranch situated near Granger, in Yakima county; (2) cancellation of a quitclaim deed which, it was alleged, plaintiff had been induced through misrepresentations to execute, thereby relinquishing his interest in the ranch to the defendant Lewis who later conveyed the property to the defendant Chaffee; and (3) in effect, cancellation of a written agreement made between the plaintiff and the defendant Chaffee at the time of the execution of the foregoing quitclaim deed. Plaintiff also sought, in his second cause of action, as against the defendant Stephen E. Chaffee and the defendants C. A. Neville, Loren L. Taylor, Harry Knudsen and Ted Lehr, an accounting of all moneys and profits alleged to have been received by the entire group of defendants in a turkey growing business conducted upon the ranch, with which venture all the parties to this suit were in one way or another connected.

The defendant Lewis defaulted in the action. The other defendants, appearing in two groups, but through the same counsel, answered, setting up general denials and also affirmative defenses involving cross-complaints against the plaintiff for breaches of certain contracts pertaining to the turkey growing venture.

Upon a trial without a jury, the court entered a decree (1) adjudging the defendant Stephen E. Chaffee to be the owner and entitled to the possession of the real estate comprising the ranch above mentioned, and quieting his title thereto as against any and all claims of the plaintiff; but (2) granting plaintiff judgment against defendant Stephen E. Chaffee alone in the sum of $13,255.96, together with interest thereon at the rate of six percent per annum from January 1, 1942; and (3) adjudging plaintiff to be the owner and entitled to the possession of certain specified personal property used, and still in use, as equipment in connection with the operation of the ranch and turkey growing enterprise.

Defendant Stephen E. Chaffee gave notice of appeal from that portion of the decree which was adverse to him, and in due time superseded the judgment by depositing with the clerk of the superior court cash in the sum of $15,000, in lieu of a supersedeas and cost bond. The plaintiff did not appeal from any portion of the decree. We shall hereinafter refer to Stephen E. Chaffee as the appellant, to Perry J. Chaffee as the respondent, and to the other parties above mentioned as defendants.

The first matter to be disposed of is respondent's motion, made in this court, for an order dismissing the appeal upon the grounds (1) that the statement of facts proposed by appellant and certified by the trial court is inadequate, and (2) that a number of the exhibits which were made a part of the statement of facts as certified are missing from the record. We shall consider the two grounds in the order stated.

This was an equitable action, presenting multifarious issues of fact and of law, and involving a long and intricate accounting. The trial lasted a period of approximately three months, during the progress of which the trial judge wrote six successive memorandum opinions. Although admittedly all of the testimony given by the various witnesses is not Before us, the statement of facts certified by the trial court covers two thousand pages. Respondent asserts that this comprised only about one-third of the testimony. Five hundred ten written exhibits were introduced in the course of the trial.

In preparation of his appeal, the appellant followed the procedure prescribed by Rule IX(2), Rules of the Supreme Court, 193 Wash. 10-a, by serving and filing 'a concise statement of the points on which he intends to rely on the appeal,' together with a proposed statement of facts covering so much of the evidence as in appellant's opinion bore upon the questions sought to be reviewed. Respondent proposed no amendments, and the trial court, after due consideration, certified the statement of facts as proposed, in compliance with the rules set forth in Livermore v. Northwest Airlines, Inc., 6 Wash.2d 1, 106 P.2d 578.

The certificate of the trial court is in proper form, and there is nothing in the record which in any way indicates that the court erred in its consideration and certification of the contents of the statement of facts as proposed. Under such circumstances, augmented by the fact that respondent proposed no amendments, we are foreclosed from further inquiry as to the sufficiency of the statement of facts as certified. Von Herberg v. Von Herberg, 6 Wash.2d 100, 106 P.2d 737.

The second ground of the motion is that fifty-five of the entire number of exhibits introduced are not included in the statement of facts, and, in particular, that nine of these exhibits, though originally by reference made a part of the statement, are now missing. The certificate of the trial judge recites that the exhibits as therein listed are all the exhibits introduced and received in evidence in connection with the testimony and proceedings contained in the statement of facts. The respondent made no request for the inclusion of other exhibits. For reasons similar to those hereinBefore given in disposing of the first ground of the motion, we are precluded from inquiring into the relevancy, materiality, or necessity of any exhibit other than those which were certified by the trial court.

Respondent's statement that 'nine' of the exhibits as certified are still missing from the record is not entirely correct. We have carefully checked the record on appeal and find that but five exhibits are missing, namely, numbers 19, 317, 361, 412J and 419. The absence of even five authenticated exhibits, however, presents a situation that requires attention, since it is the duty of the appellant in a case on appeal to see that a proper statement of facts and such exhibits as have been made a part thereof are filed in this court.

An affidavit made by a deputy clerk of the superior court for Yakima county states that after the exhibits in the case had been introduced appellant himself had on various and numerous occasions taken fifty-five of them out of the clerk's office for different periods of time and had not returned them. If this be true, it indicates a practice that should not be permitted nor condoned, for reasons that are obvious. Were it clear to us now that the five exhibits are material to the consideration of the issue upon which this opinion is based, or were there even any serious question on that score, we would be fully warranted in striking the entire statement of facts as certified, letting the consequences fall upon the party at fault.

In this instance, however, the character of the missing exhibits is clearly identified in the statement of facts. In the aggregate, they comprise the postmark upon a postal card, a number of checks the amounts of which are otherwise shown, and a bundle of invoices and charge slips considered by the trial court upon the accounting phase of the action. Our disposition of the case upon its merits, however, is in no way dependent upon an examination of these exhibits nor upon the mathematical results of the accounting as determined by the trial court. For these reasons, the absence of the five exhibits does not warrant us in striking the statement of facts. The motion to dismiss the appeal is therefore denied.

We come now to the merits of the case, necessitating a presentation of the facts as disclosed by the evidence as certified. We may say at the outset that the various memorandum opinions and supplemental comments of the trial court, comprising one hundred thirty-eight pages, have been found most helpful as a digest of the evidence, and we shall avail ourselves of much of the material contained therein.

Appellant and respondent are brothers. Appellant is the older of the two, but respondent is a mature man, of the age of approximately fifty years. Appellant is an able, experienced, and outstandingly busy member of the legal profession, residing in Sunnyside, Washington. At the same time, he has devoted much of his attention to various interests outside the practice of law. For many years he has dealt in real estate and other property, for himself as well as for his clients. He has owned, and now owns, several farm properties, aside from the one involved in this litigation. He has acted in a trust capacity in both public and private matters.

Respondent though in all respects an intelligent person, is an uneducated man. Until some time in 1935, he had spent the greater...

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    ...under the guise of interpretation, to rewrite contracts which the parties have deliberately made for themselves." Chaffee v. Chaffee, 19 Wash.2d 607, 625, 145 P.2d 244 (1943) (citing 12 Am.Jur. Contracts § 228, at Panorama asserts the Court of Appeals improperly, in effect, added language t......
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