Goodwin v. Gillingham

• Decision Date: 11 October 1941
• Docket Number: 28008.
• Citation: 10 Wn.2d 656,117 P.2d 959
• Parties: GOODWIN v. GILLINGHAM et ux.
• Court: Washington Supreme Court

117 P.2d 959

10 Wn.2d 656

GOODWIN v. GILLINGHAM et ux.

No. 28008.

Supreme Court of Washington

October 11, 1941

Department 1.

Action by J. Z. Goodwin against H. B. Gillingham and his wife to recover damages for breach of a contract to execute a lease. From a judgment for plaintiff, defendants appeal and plaintiff moves to strike the statement of facts.

Motion to strike the statement denied, and judgment reversed and cause dismissed.

Appeal from Superior Court, Spokane County; Chas W. Greenough, judge.

Burton J. Onstine and A. W. Dolphin, both of Spokane, for appellants.

H. E T. Herman and Cornelius E. Collier, both of Spokane, for respondent.

ROBINSON Chief Justice.

In this cause, we are met at the outset by a motion, set forth in respondent's brief, to strike the statement of facts upon the ground that there are not included therein 'the complete record and all the proceedings and evidence in the cause.' It is said that it nowhere purports to show the examination of the jury, or the addresses to the jury, or the opening statements of counsel, and it clearly appears that it does not. The trial judge, however, has certified that it contains all the material facts, matters, and proceedings occurring in the cause, not already a part of the record therein, and all of the evidence, oral and written. Furthermore--and this, we think, should dispose of the matter--the trial judge certifies: 'That no amendments were proposed to said Statement of Facts except such as are embodied therein.'

The motion is denied.

This is an action at law in which damages are sought for the alleged breach of an oral contract to make, execute and deliver a written lease demising an apartment house for a term of three years.

The complaint alleges, in substance, that, on November 9, 1938 for and in consideration of $200 as rental for the period of one month, the defendants orally agreed to prepare, execute, and deliver a written lease of the premises, covering a period of three years from November 9, 1938, for an agreed rental of $200 per month during the first year, $210 per month during the second year, and $215 per month during the third year.

It is further alleged that it was 'understood' by the defendants that, because of their promise to make the lease, the plaintiff would immediately proceed to purchase the furnishings of the apartment, which furnishings were owned by the then tenant, and pay certain taxes due thereon; that plaintiff did purchase the furnishings, upon a forfeitable installment contract, for an agreed sum of approximately $5,000, making a down payment of $2,437.25, and entered into possession of the premises, and, while remaining in possession, paid rental on December 9, 1938, in the sum of $200, and a like amount on January 9, 1939.

It is further alleged that the defendants did not execute and deliver the written lease, but, on the contrary, early in January, 1939, sold the premises to Edith E. Stone, and, upon the plaintiff's tender of the February rent, refused the tender for that reason; that plaintiff then tendered $200 to Mrs. Stone, on condition that she would carry out the alleged promises of the Gillinghams, which she not only refused to do, but served plaintiff with a notice to quit or pay rent.

It is further pleaded that, because of the defendants' alleged breach, plaintiff was compelled to abandon the premises and forfeit his contract to purchase the furnishings and equipment, to his damage in the following amounts: $2,437.25, down payment on the furnishings contract; $160, subsequently paid in installments thereon; and $68.83, interest paid on deferred installments. Plaintiff further alleges that he spent $58 for labor and material in improving the apartments, and that he was damaged in the further sum of $4,422, which, he pleads, 'represents the profits lost to plaintiff' which he would not have lost 'had defendants not breached their aforesaid promise, agreement and contract.'

It will be noted that the complaint does not purport to seek relief on the ground of fraud, or in any way invoke the exercise of the equitable powers of the court. It purports to be a straight action at law to recover damages for breach of contract.

The pleadings of the defendants raised a number of issues of fact, and the plaintiff demanded a jury trial. After a jury had been impaneled and Before any evidence was taken, the defendants moved that the plaintiff be non-suited and the action be dismissed with prejudice, on the ground that the complaint did not state sufficient facts to constitute a cause of action against the defendants, or either of them, since the action was, upon an oral contract, void under the laws of the state of Washington, and especially under Rem.Rev.Stat. §§ 10550, 10551, and 10618. The motion was denied.

When the plaintiff rested, the defendants challenged the sufficiency of the evidence on the same grounds, and upon the additional ground that Rem.Rev.Stat. § 6893, requires all conveyances of community real property be executed by deed of the husband and wife; defendants contending that no evidence had been introduced that the defendant wife had consented to, or ratified, the alleged oral agreement. This motion was denied.

At the close of all the evidence, the defendants challenged its sufficiency to warrant a verdict in plaintiff's favor. This challenge was denied, and the case sent to the jury, which returned a verdict in favor of plaintiff and against the defendants in the sum of $2,655.25. Motions for judgment notwithstanding the verdict and, in the alternative, for a new trial were seasonably made by the defendants. These motions were denied, and judgment entered upon the verdict.

Appellants assign error with respect to the refusal of the court to give certain requested instructions and upon the rulings made upon their various motions and challenges hereinBefore mentioned, including the post trial motions.

We approach the problems presented by the appeal by quoting the opening words of the respondent's brief:

'Respondent does not concede that the questions involved are those set forth on pages 3 to 5, inclusive, of appellants' opening brief. The questions involved are:

'1. Was the evidence which was admitted at the trial without objection sufficient to justify the trial judge in submitting to the jury the question whether there existed sufficient conduct on the part of appellants (defendants) and ample consideration moving to them for removing the oral lease for a term of more than one year from the ban of the statute?' If, in fact, the trial judge did submit that question to the jury, '* * * whether there existed sufficient conduct on the part of appellants (defendants) and ample consideration moving to them for removing the oral lease for a term of more than one year from the ban of the statute,' he clearly erred in so doing. The question is obviously one that only a chancellor can decide. In the very nature of things, a judge cannot delegate his chancery powers to a jury under any imaginable circumstances. We have carefully considered whether or not it can be deemed to appear from the record that what the trial judge actually did was to send certain questions of fact to the jury for determination, retaining certain equitable questions for his own decision. But we have been unable to find any indication therein that this was done.

As hereinBefore pointed out, the complaint purported to present a straight action at law for breach of contract. There is nothing in the complaint to indicate that the plaintiff invoked the equity power of the court. We find nothing in the statement of facts to indicate that such powers were invoked during the course of the trial. The record shows that the court tried an action at law, and, after...