Eddleman v. McGhan

• Court: Washington Supreme Court
• Writing for the Court: OLSON; GRADY
• Citation: Eddleman v. McGhan, 45 Wn.2d 430, 275 P.2d 729 (Wash. 1954)
• Decision Date: 21 October 1954
• Docket Number: No. 32946
• Parties: William R. EDDLEMAN, Respondent, v. C. D. McGHAN and Gladys McGhan, his wife, Appellants.

Page 430

45 Wn.2d 430

275 P.2d 729

William R. EDDLEMAN, Respondent, v. C. D. McGHAN and Gladys McGhan, his wife, Appellants.

No. 32946.

Supreme Court of Washington, Department 1.

Oct. 21, 1954.

Clemens & Kasperson, W. A. Raley, Seattle, for appellants.

Eddleman & Wheeler, Seattle, for respondent.

OLSON, Justice.

When an alleged stipulation or agreement of compromise does not comply with the pertinent rule or statute because it is not in writing and subscribed by the attorney denying it, can conflicting evidence of its consummation be considered, to sustain an offset pleaded in an action other than the cause in which the stipulation allegedly was made?

The trial court disregarded such evidence, denied defendants' offset, and entered judgment for plaintiff. Defendants have appealed.

Defendant C. D. McGhan drew a check to the order of Skycoach Airlines Agency to pay a debt he owed the agency. The check was transferred to plaintiff by the payee for value, without endorsement. It was not paid on presentation because payment had been stopped by defendant drawer, and plaintiff brought this action to recover the amount for which it was drawn.

Defendants plead as an offset a claim due them from the transferor, Skycoach. They allege that the is a defect in the transferor's title to the check, and, consequently, a defense to this action, under RCW 62.01.049, cf. Rem.Rev.Stat. § 3440, which reads is part as follows:

'Where the holder of an instrument payable to his order transfers it for value without indorsing it, the transfer vests in the transferee such title as the transferer had therein, * * *.'

The offset pleaded is an agreement of compromise and settlement of an action brought by defendants against Skycoach, under which it is claimed Skycoach agreed to deposit certain funds in a Seattle bank, subject to withdrawal on certain terms, to assure performance of the settlement agreement. The cause which allegedly was compromised, was brought by defendants against Skycoach for an injunction and incidental unliquidated damages. Defendants, as plaintiffs in that action, did not claim any debt due to them from Skycoach, and their obligation to Skycoach on the account for which the check was issued was not in controversy in that cause.

From these facts, it is apparent that any obligation due from Skycoach to defendants must rest upon the alleged agreement of settlement. This alleged agreement does not meet the requirements of Rule of Superior Court 10, 34A Wash.2d 114, which reads as follows:

'No agreement or consent between parties or attorneys in respect to the proceedings in a cause, the purport of which is disputed, will be regarded by the court unless the same shall have been made and assented to in open court and entered in the minutes, or unless the evidence thereof shall be in writing and subscribed by the attorneys denying the same.'

The trial court also found that it did not comply with the statute pertaining to the...