Donaldson v. Greenwood, 31728

• Decision Date: 03 April 1952
• Docket Number: No. 31728,31728
• Court: Washington Supreme Court
• Parties: DONALDSON, v. GREENWOOD et al.

Page 238

40 Wn.2d 238

242 P.2d 1038

DONALDSON, v. GREENWOOD et al.

No. 31728.

Supreme Court of Washington, Department 1.

April 3, 1952.

Rehearing Denied May 7, 1952.

Ogden & Ogden, Clinton H. Hartson, Seattle, for appellants.

Lenihan & Ivers, Seattle, for respondent.

WEAVER, Justice.

This is an action between the parties to a joint venture (a) for an accounting between them; (b) for a declaration that defendants hold one-half of the real property involved in trust for plaintiff; and (c) for an order directing defendants to make such conveyance of the real property to plaintiff as would reflect plaintiff's interest therein, or, in the alternative, for a money judgment in favor of plaintiff for the value of his interest in the property. It is not, as defendants urge, an action for specific performance of an agreement to deed an undivided one-half interest in certain real property.

The first question raised by appellants' (defendants') assignments of error requires we set forth the procedural history of this case in some detail. Trial commenced September 6, 1950. Both plaintiff and E. M. Greenwood, who will be referred to in most instances as the sole defendant, were present in court. On the afternoon of the following day, plaintiff, before his cross-examination had been completed, fell ill. He was confined to a hospital for a short time and directed to take a complete rest for at least thirty days. It was the doctor's opinion that he had suffered a light stroke.

Over defendant's objection, the trial was resumed on Friday, September 8. Five additional witnesses testified for plaintiff and were cross-examined. The trial was continued until Monday, September 11. On that day, plaintiff being unable to appear in order that his cross-examination be completed, the case was continued until November 13, 1950.

October 18, defendant signed an affidavit in support of a motion to continue the trial from November 13 to a later, unspecified date. Defendant's reasons for the continuance were wholly personal. No emergency existed. The motion was set for hearing October 27.

In the meantime, defendant left the jurisdiction without the assurance of the trial court that the motion would be granted. The trial court denied it.

The trial was resumed on November 13. Plaintiff's cross-examination was completed and an additional witness for the plaintiff examined. The plaintiff rested his case on November 14. A challenge to the sufficiency of the evidence having been denied, defendant's counsel renewed his former motion for a continuance. Defendant had sailed for Europe. Between October 27, the day defendant's motion for a continuance had been denied, and November 13, the date to which the trial had been continued, defendant's counsel had used unusual diligence, by transatlantic telephone and cable, to inform defendant of the court's ruling. It appeared to the trial court that defendant did not receive word of the denial of the continuance until his arrival in Paris on November 13. In view of this, the court continued the case, subject to call, to afford defendant the opportunity of returning to Seattle to testify. Defendant's counsel cabled him to determine whether he would return to Seattle on any date prior to December 12.

November 17, defendant's counsel received a cablegram from him stating he was leaving Paris almost immediately for South America and that it would be impossible for him to return to Seattle before February, 1951. The reasons for his absence from the jurisdiction were still entirely personal and not of an emergency nature.

Having been so informed, plaintiff's counsel, on November 22, moved to rescind the continuance 'subject to call.' On that day, the indefinite continuance was cancelled and the case continued until November 29.

On November 29, the trial court entered an order terminating all further continuances. Plaintiff having rested and defendant offering no testimony, other than his pre-trial deposition, which was received, the trial court announced it was prepared to give judgment for plaintiff. A referee was appointed to report on certain items of accounting between the parties. In due course, findings and judgment were entered for plaintiff.

The denial of a continuance rests in the sound discretion of the trial court and will not be reversed except for manifest abuse. Conner v. Zanuzoski, 36 Wash.2d 458, 218 P.2d 879; State v. Gillingham, 36 Wash.2d 655, 220 P.2d 333; see note and cases cited in 26 Wash.L.Rev. 212 (1951).

On October 27, the trial court had for consideration defendant's affidavit dated October 18, which alleged:

'* * * that affiant's daughter * * * had been attending school in Paris, France; that within the last several days she notified affiant and her mother that she had met a man in Paris whom she desired to marry; that affiant considers it essential and he has, therefore, arranged to leave Seattle, Washington, on the 18th day of October, 1950, to go to Paris, France. * * *'

Overlooking the doubtful sufficiency of the affidavit to entitle defendant to an indefinite continuance, and even disregarding the fact that defendant voluntarily assumed the calculated risk of leaving the jurisdiction before he knew whether the continuance would be granted or not, he was, on November 14, given a continuance to afford him the opportunity of returning to Seattle to testify on any date prior to December 12. Having been informed of this, he chose to cable from Paris 'Wedding December Santiago. We all sailing this Saturday Chile. Impossible return Seattle before February.'

A party knowing the date a cause is set for trial, cannot absent himself from the jurisdiction of the court and expect the court to delay the trial merely to suit his personal convenience. Humphrey v. Mutual Life Ins. Co., 86 Wash. 672, 151 P. 100.

The record discloses that the trial judge not only did not abuse his discretion in denying a further continuance, but, under the circumstances of this case, exercised a high degree of fairness and judicial restraint.

Plaintiff Donaldson and defendant Greenwood met more than twenty years before the occurrence of the transaction out of which the present litigation arose. Their casual acquaintance grew into one of friendship and mutual confidence.

In October, 1944, plaintiff and defendant orally agreed to purchase and develop some thirty-two hundred acres of patented land and certain mining claims containing valuable lime deposits located in Siskiyou County, California. Each of the parties was to have an undivided one-half interest in the enterprise. Plaintiff was interested in developing the lime deposits; defendant, in a place to breed horses.

Plaintiff, with the knowledge of the former owners of the properties that he had an interest in the purchase, was allowed a $2,000 commission, which was credited upon the sale. The purchase price, which was $25,000 cash, included livestock on the premises. $5,000 was agreed upon as the value of the mining claims, to be paid later when the claims were assigned. The $20,000 was financed as follows: (a) $2,000 commission credited to plaintiff; (b) $12,500 mortgage placed upon the property by defendant; (c) $5,500 cash paid by defendant. Shortly after the purchase, the livestock was sold and the $3,500 realized therefrom was paid to defendant, leaving each of the parties with $2,000 cash in the transaction.

In order to facilitate the financing and to carry out the terms of the agreement between the parties, title was taken in the name of defendant. However, on November 20, 1944, defendant gave plaintiff the following receipt:

'Rec'd from Paul Donaldson $2000--as first payment on 1/2 (one-half) interest in Chastain McCoy property, lime claims & cattle--balance due on entire deal $23,000 of which you are to pay one-half--Formal agreement to be prepared covering deal more explicitly----

'/s/ E. M. Greenwood'

On December 26, he wrote plaintiff as follows:

'Dear Paul:

'In conjunction with our purchase of the Chastain and McCoy property and lime claims near Gazelle, California, it is understood and agreed as follows:

'1. That I am to finance this transaction in its entirety up to July 1, 1945, and take the deed and all papers pertaining thereto in my name.

'2. On or before July 1, 1945, you are to reimburse me for 50% of any amounts advanced for the acquiring of this property and any amounts expended for its operation and development. To date this would amount to 50% of our net down payment of $2000 plus 50% of the first monthly payment re the mortgage, which is $234.72, plus 50% of the clearing and appraisal fees. The total purchase price for the property now amounts to $19,500.00, $5,000.00 of which is apportioned to the lime claims.

'The legal description of the deeded land is as follows: [We omit the legal description.]

'The description of the lime claims is as follows: [We omit the legal description.]

'Your failure to pay half of the purchase money expended, plus any other expenses we mutually agree upon, by July 1, 1945, shall constitute a default and cancellation of this agreement.

'Very truly yours,

'/s/ E. M. Greenwood.'

(Italics ours.)

It is apparent that the parties purchased the property as joint venturers, that title was taken in defendant's name in order to finance the transaction more easily, that they were to share equally therein, and that plaintiff was to pay one-half of the purchase price and one-half of the expenses upon which they would mutually agree. The trial court so found.

The property had been used as a cattle ranch by the former owner. On it, however, is located a tremendous deposit of very high-grade lime rock. The tonnage estimate is astronomical. The deposit extends almost two miles. It varies in width from four hundred yards to a quarter of a mile, with the pinnacle almost six hundred feet high. It is comparatively free from overburden. Laboratory tests show the lime rock to be of...