O'Day v. Ambaum

• Decision Date: 26 November 1907
• Court: Washington Supreme Court
• Parties: O'DAY et al. v. AMBAUM et al.

92 P. 421

47 Wash. 684

O'DAY et al. v. AMBAUM et al.

Supreme Court of Washington

November 26, 1907

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by M. O'Day and another against Jacob Ambaum and others. From a judgment dismissing the action, plaintiffs appeal. Affirmed.

Vince H. Faben, for appellants.

Aust &amp Terhune, for respondents.

CROW J.

This action was commenced by M. O'Day and the Title Guaranty &amp Surety Company, a corporation, against Jacob Ambaum, Frank Conrad, Harry Wakes, Charlotte Wakes, his wife, and Charlotte La Croix, to enjoin the conveyance of certain real estate. The plaintiffs allege that on April 1, 1906, the defendant Jacob Ambaum entered into a contract with King county to construct a certain wagon road; that he as principal and the plaintiffs as sureties executed and delivered to King county a bond for the faithful performance of his contract; that about May 1, 1906, defendant Ambaum formed a partnership with the defendants Frank Conrad and Harry Wakes, for the purpose of performing the contract and constructing the road; that the partnership proceeded with the work; that shortly thereafter dissensions arose, and that an action is now pending in the superior court of King county wherein Harry Wakes as plaintiff seeks to dissolve the partnership. The complaint further alleges: '(6) That the said defendants have mismanaged the said work in lax manner, and have mismanaged the finances of said partnership, and that said partnership is now insolvent and the said road cannot now be constructed for the price agreed upon between the partners nor for at least $2,000 additional, and that there is outstanding about $1,000 in unpaid bills of the said partnership for material used upon said road, and that the said defendants have already lost to these plaintiffs more than $2,000 over and above the contract price by his mismanagement and misfeasance in the construction of said road, and that the defendants are insolvent and have no property except such as is exempt from execution by law except the defendants Harry Wakes and Charlotte Wakes, his wife, who are the owners of block 22 of Jordon's Acre Garden tracts, in King county, Wash., and that said property is the community property of the said Harry Wakes and wife. (7) That the said defendants Harry Wakes and wife have disposed of their property to defendant La Croix, the daughter of defendant Wakes, without consideration, for the purpose of avoiding their liability to the plaintiffs and to the said partnership in the construction of said county road and for the purpose of defeating any claims the plaintiffs might have against said defendants by reason of their defalcation in the performance of their contract aforesaid, and that these plaintiffs are without remedy at law to protect their interests as aforesaid; that said property is described as block 22 of Jordans Acre Gardens in King county, Wash. (8) That it will take about 40 days from the date of this complaint within which to complete and parform the said contract for the construction of said county road, and to determine the amount of liability of the said defendants to these plaintiffs by reason of their said defalcation.' The plaintiffs demanded judgment restraining and enjoining the defendants from disposing of their nonexempt property until plaintiffs' liability as sureties on the bond could be determined. A general demurrer to the complaint was overruled. Thereupon the defendants Harry Wakes, Charlotte Waskes, his wife, and Charlotte La Croix answered, and the plaintiffs replied. When the case was called for trial, the answering defendants objected to the introduction of evidence, on the ground that the complaint did not state a cause of action, and that the evidence offered was insufficient to sustain a decree. The objection being sustained, a final order was entered, dismissing the action, and the plaintiffs have appealed.

The appellants contend that the order overruling the respondents' demurrer adjudicated the sufficiency of their complaint became the law of the case, and thereafter bound the trial court. Section 4911 Ballinger's Ann. Codes & St., provides that the objection that the complaint does not state facts sufficient to constitute a cause of action be made at any stage of the proceedings. This court, however, has held that a defendnat's failure to interpose a demurrer to a complaint, followed by an objection to its sufficiency made for the fisrt time at the trial will cause the court, in passing upon such objection, to bring to the support of the complaint every reasonable intendment and legitimate inference that may be drawn from its allegations, and also from the evidence adduced to sustain the plaintiffs' cause. If, on an application of this test, it appears that the defect in the plaintiff's complaint and cause of action is one of subtsance which cannot be...