Gregory v. Peabody

• Decision Date: 03 October 1928
• Docket Number: 21321.
• Citation: 149 Wash. 227,270 P. 825
• Parties: GREGORY v. PEABODY et al.
• Court: Washington Supreme Court

270 P. 825

149 Wash. 227

GREGORY v. PEABODY et al.

No. 21321.

Supreme Court of Washington

October 3, 1928

Department 1.

Appeal from Superior Court, King County; James B. Kinne, Judge.

Action by George W. Gregory against Alexander Peabody and others executors under the last will and testament of Charles E Peabody, deceased. From a judgment granting defendants' motion for judgment notwithstanding the verdict and dismissing the action, plaintiff appeals. Reversed and remanded, with direction.

George F. Hannan, of Seattle, for appellant.

Bronson Jones & Bronson, of Seattle, for respondents.

MITCHELL J.

This action was brought to recover the value of improvements made by the plaintiff upon the real property of Charles E. Peabody and his wife. It was alleged: That he, for himself and the community composed of himself and wife, entered into an oral agreement with plaintiff to give a 15-year lease of 5 acres of what is commonly known as Donnybrook farm to a corporation to be organized by the plaintiff and to be known as 'Donnybrook Gardens' of which plaintiff and others were to be stockholders, and that, relying upon the agreement, the plaintiff, with the knowledge and consent of Charles E. Peabody, was engaged several months in the construction of a greenhouse on the premises for the benefit and use of the corporation to be organized. That it was explained by the plaintiff and understood by Charles E Peabody that the lease should run to the corporation so that the corporation and not the plaintiff should be liable to pay the rent, and that the amount thus spent by the plaintiff in the erection of a greenhouse was $4,830.80, in which amount the value of the real property was enriched and enhanced. That, after the greenhouse was built, and upon perfecting arrangements for the organization of the corporation, Charles E. Peabody refused to execute the lease to it, thus compelling plaintiff to abandon the enterprise. It was further alleged that Charles E. Peabody had died, leaving a will which was admitted to probate, and under which Alexander Peabody, Ira Bronson, and Lily M. Peabody, as executors, were administering his separate estate and that of the community, and that a duly verified creditor's claim for the amount above stated had been presented to and rejected by the executors, and that it had been filed in the probate cause in the office of the clerk of the superior court.

The amended answer, on which the case was tried, in addition to certain general denials, affirmatively alleged (1) that, if any such oral agreement was made, it was void and unenforceable under the statute of frauds of this state, because it was not in writing, signed and acknowledged by Charles E. Peabody and his wife; (2) that if any enforceable agreement was made, which defendants did not admit, Charles E. Peabody tendered a full compliance which plaintiff refused to accept; and (3) that the subject-matter of the action had been adjudicated in a former action wherein this plaintiff was plaintiff and Charles E. Peabody and his wife were defendants. The affirmative defenses were denied by the plaintiff. On the trial of the case there was a verdict for the plaintiff. Defendants filed a motion for judgment notwithstanding the verdict and also a motion for a new trial. The motion for judgment notwithstanding the verdict was granted, and the motion for new trial was denied. The plaintiff has appealed from the judgment dismissing the action.

The contention of the respondents is that the decedent agreed to give a lease to the appellant and not to the corporation proposed to organize, and that he tendered such a lease. This we understand is the meaning of the second affirmative defense. While there was evidence in the case tending to establish that claim, there was on the contrary quite enough to satisfy the jury that the decedent agreed the lease should run to the corporation so that it would be liable for the rent and not the appellant. There was testimony that during the negotiations leading to the final agreement, in discussing the form of the instrument to the corporation, it was suggested by or on behalf of the decedent that the appellant who held this 5-acre tract together with other lands under a forfeitable real estate contract should himself make the lease to the corporation to which the decedent would give written consent, but that the plan was objected to by the appellant unless he was relieved from personal liability to pay the rent, because decedent's consent that appellant make the lease would not relieve appellant from personal liability according to the case of Johnson v. Norman, 98 Wash. 331, 167 P. 923, which was referred to by the appellant in their negotiations, and that it was finally agreed that the decedent should give the lease so that the corporation alone would be liable. It was further shown that, with the knowledge of the decedent, the appellant constructed a greenhouse on the premises, reasonably costing the amount of his claim, for and on behalf of the corporation to be formed, and that, upon completing arrangements to organize a corporation, the decedent refused upon demand to furnish the lease as agreed to, thus compelling appellant to abandon his plan. The decedent took possession of the property and thereafter continued in possession; the appellant having been paid nothing for making the improvements.

The...