Greenbaum v. Stern

• Citation: 90 Wash. 156,155 P. 751
• Decision Date: 07 March 1916
• Docket Number: 12954.
• Court: Washington Supreme Court
• Parties: GREENBAUM v. STERN.

155 P. 751

90 Wash. 156

GREENBAUM v. STERN.

No. 12954.

Supreme Court of Washington

March 7, 1916

Department 2. Appeal from Superior Court, King County; A. W. Frater Judge.

Action by Abe Greenbaum against Leopold M. Stern. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded for new trial.

Edward Judd, of Seattle, for appellant.

Aust &amp Terhune, of Seattle, for respondent.

PARKER J.

The plaintiff, Abe Greenbaum, seeks recovery from the defendant Leopold M. Stern, upon an alleged promise made by the defendant to the plaintiff to pay a debt due plaintiff from his brother, Albert Greenbaum; the promise being a part of a verbal contract to which all three were parties. Trial before the court and a jury resulted in a verdict and judgment in favor of the plaintiff, from which the defendant has appealed.

Respondent's version of the making of the contract, its terms, and the attending circumstances is in substance as follows: In December, 1911, respondent was the manager in charge of two stores belonging to his brother, Albert, one of which was at Anacortes, and the other at Sedro-Woolley. Respondent resided at Anacortes, but visited the store at Sedro-Woolley about every other day. His brother, Albert, and appellant were residents of Seattle. Albert was then indebted to respondent in the sum of $1,140 on account of money loaned. About December 14, 1911, Albert and appellant, the latter being then Albert's lawyer, as he informed respondent, came to the store at Anacortes with a view of having respondent ship or deliver to appellant a large quantity of goods to be taken from the stores. This intention being made known to respondent, he declined to ship any of the goods or deliver them to appellant until his debt of $1,140 due him from Albert was paid or secured. Respondent testified upon this subject as follows:

'I told him [Albert] I would not do it; that he owed me $1,140, and no goods would go out until I got my money as it was hard earned money. This was in the presence of Stern.'

It was thereupon agreed between Albert, appellant, and respondent that the goods should be shipped or delivered to appellant, and that he would assume and pay to respondent the debt owing from Albert. Thereafter, in pursuance of this agreement, respondent shipped to appellant at Seattle a quantity of the goods of the wholesale value of some $2,300, where they were received by appellant in due course. Shortly thereafter an equal or greater quantity of goods was taken from the stores and delivered to appellant and taken away by him as baggage. Appellant in each instance aided in selecting the goods, and was given the privilege of exercising his choice in making the selection. This version of respondent is corroborated to a large extent by other witnesses who were present. It is not plain that respondent then knew just what appellant was going to do with the goods or the exact nature of the interest appellant thereby acquired in the goods. Appellant's version of the matter is that he was not a party to any such agreement as testified to by respondent; that he was not at Anacortes or Sedro-Woolley at any time in December, 1911, and never entered into any such agreement at either of those places or elsewhere; that he did receive a shipment of goods at Seattle about December 15, 1911, which came from the store at Anacortes, corresponding substantially to the first shipment of goods claimed by respondent to have been made; and that he sold the goods at 50 cents on the dollar, receiving $972 therefor. While he was permitted to deny that this was done in pursuance of the contract claimed by respondent to have been made, he was not permitted to testify as to the making of an entirely different contract between himself and Albert alone at Seattle, and that his receipt and sale of the goods was made in pursuance thereof, and that he paid the money in pursuance of such contract. Certain statements of Albert were also offered to be proven as admissions that the contract sued upon was not made. They were also excluded.

Counsel for appellant contend that the trial court erred in denying its motion for a new trial. In this behalf it is insisted that the court erred in excluding evidence offered tending to show that Albert had since December, 1911, made certain statements amounting to admissions that there never was any agreement made between him, respondent, and appellant of the nature claimed by respondent. The formal offer was as follows:

'The defendant offers to prove by letters of Albert Greenbaum and by statements made by him to other persons, not being made in the presence of the plaintiff, that Albert Greenbaum, since December, 1911, has several times stated that the plaintiff, Abe Greenbaum, had no claim against Leopold Stern, and has several times stated that the acts testified to by the plaintiff and his witnesses as to what occurred where Albert Greenbaum was present in Anacortes and Sedro-Woolley never occurred. I offer to have this testified to by Max Howe and Herman Kessler, and also by the copy of a letter from Stern to Greenbaum, and letter from Greenbaum to Stern, which are on file as exhibits for identification.'

The letters had previously been offered in evidence and excluded by the court upon objection by counsel for respondent. They consist of an office copy of a letter of inquiry which appellant had mailed to Albert at Vancouver, where Albert then resided, and Albert's reply thereto, relating to the claims made by respondent touching the existence and terms of the contract. Plainly the facts stated in these letters thus sought to be shown were material; the only serious question being: Are these extrajudicial statements of Albert admissible as tending to prove such facts? We have seen that respondent claims under an agreement to which Albert was a party as well as himself and a...