Collins v. Huffman

• Decision Date: 07 January 1908
• Citation: 48 Wash. 184,93 P. 220
• Parties: COLLINS et al. v. HUFFMAN et al.
• Court: Washington Supreme Court

93 P. 220

48 Wash. 184

COLLINS et al. v. HUFFMAN et al.

Supreme Court of Washington

January 7, 1908

Appeal from Superior Court, Spokane County; Miles Poindexter, Judge.

Action by T. E. Collins and others against Fred B. Huffman and the Fidelity & Deposit Company of Maryland. From a judgment for plaintiffs, both plaintiffs and the Fidelity & Deposit Company appeal. Affirmed on both appeals.

Cullen & Dudley, for appellants.

Danson & Williams, for respondent.

HADLEY C.J.

This is a suit for damages based upon two injunction bonds. The bonds were executed by the defendant Fred B. Huffman and another with defendant Fidelity & Deposit Company of Maryland as surety. The facts stated in the complaint are substantially as follows: On the 23d day of December, 1903, in an action then pending in the district court of the First judicial district of the state of Idaho, wherein one George W. Huffman and the defendant Fred B. Huffman were plaintiffs and the plaintiffs herein were defendants, a restraining order was issued whereby these plaintiffs, the defendants in the former action, were restrained from in any manner interfering with the stock of merchandise, books of account accounts, and personal property belonging to the Collins Mercantile Company located at King's Spur, Kootenai county, Idaho, and from in any way interfering with the possession thereof by the said Huffmans until the further order of court. Upon the issuance of the restraining order an injunction bond in the sum of $1,500 as required by the court was executed by the persons aforesaid, as plaintiffs in said action, and by said surety company. It is alleged that thereafter, on or about December 31, 1903, upon the hearing of the order to show cause why the restraining order should not be continued in force pending the suit, the court duly made an order continuing the injunction in force upon the condition that the plaintiffs in the action should file an additional bond in the sum of $5,000. A bond in said sum executed by the same obligors who made the first one, was thereupon duly executed and filed. It is further alleged that such proceedings were thereafter had in said action that on or about May 5, 1905, the said Idaho court finally decided that the plaintiffs in the action were not entitled to the injunction, and that a judgment was entered therein in favor of these plaintiffs. The claim for damages herein is based upon an alleged dissipation of the stock of goods and accounts, and destruction of the business of these plaintiffs during the time the said Huffmans were in possession thereof by authority of said injunction orders. The complaint fixes the damages at more than $12,000. The answers of the defendants admit the issuance of the injunction orders and the execution of the bonds, but they deny that plaintiffs were damaged in any sum. A trial was had before a jury, a verdict was returned in favor of the plaintiffs for the sum of $750, and judgment was entered in accordance with the verdict. The plaintiffs and also the defendant Fidelity & Deposit Company of Naryland have appealed.

The appeal of the plaintiff appellants is prosecuted upon the contention that the trial court proceeded upon an entirely erroneous theory, or the result which was effected in the case could not have been reached. It is contended that the evidence shows an investment by appellants of $7,000 in a profitable business; that the business was taken away from the owner by a voluntary wrongdoer through the means of a writ of injunction, and was run and controlled by such wrongdoer for nearly a year and a half, at the end of which time the whole investment of $7,000 was lost; that for such loss directly caused by the wrongdoer damages in the sum of $750 only have been awarded. The appellants have assigned many errors, and an examination of them becomes necessary to determine whether the cause was tried upon an erroneous theory.

It is first assigned that the court erred in permitting the witness Severance to answer the question as to whether it was true that he had made a contract with the Huffmans because he could not agree with them and wanted to get them out of the Severance-Huffman Company. Severance was interested in the profits of the Collins Mercantile Company, the latter being really the appellant Collins. Severance had also sustained business relations with the Huffmans, the same being referred to as the Severance-Huffman Company. When the question to which objection was made was asked Severance, he was being interrogated about an account which was owing from the Severance-Huffman Company to the Collins Mercantile Company, or really to the appellants. The objection was made upon the single ground that the Idaho court had found that there was no contract. An examination, we think, shows that the question refers to a proposed agreement or mere negotiations as descriptive of the reason why it was sought to sever the Huffmans from the company. The contention now is that permitting the witness to answer must have created a prejudice in the minds of the jury. The answer was 'No,' which was equivalent to saying that the witness did not enter into such a contract. Since it appears from the context of the record that the thought involved in the question was merely the reason that the Huffmans sought to withdraw, no prejudice could have resulted from the answer of the witness, for the reason that the answer was sufficiently to the effect that there was no contract, which was consistent with the findings of the Idaho court, and met the ground specified in the objection.

It is next assigned that the court erred in sustaining an objection to a question asked the witness Severance on re-examination as to the collectibility of the Severance-Huffman Company account, which was an account of something more than $2,000 owing to appellants. The purpose of attempting to show the collectibility of the account was to found damages against the Huffmans for failure to collect it, when it is claimed appellants were prevented by the injunction from so doing. The same witness had testified already that this accound was not taken into the charge of the Huffmans, and that he knew during all the time of the Idaho litigation that the Huffmans did not in any way claim the control of this account. This showed that the collection of the account was not taken from appellants by the injunction, and the Huffmans cannot therefore be held responsible for failure to collect it. In view of the witness' previous testimony, the matter of the collectibility of the account became immaterial to the issues in the case, and it was not error to sustain the objection.

It is next urged that it was error to sustain an objection to a question asking what the stock of goods brought when sold by the Spokane Jobbers' Association. After the injunction was dissolved, a stipulation was made between the parties for joint possession of the store for a time, and later it was turned over to the control of appellants, who placed it in the hands of the Spokane Jobbers' Association. In estimating the amount of property, appellants had charged the respondents with the full invoice price of all goods which were turned over at the time of the injunction. Respondents were therefore entitled to credit in the same way for the invoice amount of all that were turned back to appellants. These having been turned over to the Spokane Jobbers' Association by appellants themselves, it became immaterial so far as respondents were concerned what prices the goods brought.

It is also contended that it was error to overrule appellants' objection to a question asked a witness as to whether, with a few goods added, the store could have been run longer and all the outstanding accounts collected. This witness was in charge of the stock for the Spokane Jobbers' Association, which, as we have seen, held it under the direction of appellants. Whatever may be said as to the materiality of the question, no prejudice could have resulted therefrom in view of the answer of the witness. The answer was, 'It would be hard for me to say. I could not swear to that.'

A number of other errors are assigned upon the admission and rejection of testimony; but while counsel say they do not waive them, they have not discussed them in their brief. The burden is upon appellants to show wherein they have been prejudiced. Errors to be available for reversal must operate to the injury of the complaining party. Brown Bros. v. Forest, 1 Wash. T. 202; Jose v. Stetson, 20 Wash. 648, 56 P. 397. We find no prejudicial error in the particulars mentioned.

It is next contended that the court instructed the jury orally, and that this was error in view of the fact that appellants had seasonably requested written instructions. The record shows that one stenographer was employed by both parties to report the case at the trial, and that she did report it,...