Griffith v. Ridpath

• Decision Date: 29 April 1905
• Citation: 80 P. 820,38 Wash. 540
• Parties: GRIFFITH v. RIDPATH.
• Court: Washington Supreme Court

80 P. 820

38 Wash. 540

GRIFFITH v. RIDPATH.

Supreme Court of Washington

April 29, 1905

Appeal from Superior Court, Spokane County; William E. Richardson Judge.

Action by J. H. Griffith, as trustee, against W. M. Ridpath. From a judgment for plaintiff, defendant appeals. Affirmed.

Ellis G. Soule and Happy & Hindman, for appellant.

Henley Kellam & Lindsley and C. W. Hoyt, for respondent.

PER CURIAM.

This action involves a controversy concerning the plumbing of what is known as the 'Ridpath Block,' in the city of Spokane. One Dullanty entered into a contract with the defendant to do the plumbing of a three-story and basement brick and stone building for the agreed price of $6,675 which contract, it is alleged, was fully performed by Dullanty. During the progress of the work the defendant decided to build a fourth story, covering a portion of the building. The complaint alleges that said Dullanty, at the request of the defendant, provided the material and did the plumbing work in said fourth story, and that the necessary labor and material required therefor were of the reasonable value of $2,645.54. It is alleged that the sum of $3,203.04 remains unpaid on account of said contracts; that on or about the 27th day of October, 1900, and while said sum was due and owing from the defendant to said Dullanty, the latter, who was then indebted to a number of persons, assigned and set over to the plaintiff, as trustee for said persons, the said claim against the defendant, with authority to collect the same and apply it on the debts of said Dullanty. By this action said assignee seeks to recover the sum alleged to be due. The answer admits the first contract, and also that Dullanty did the plumbing of the fourth story at defendant's special instance and request, but denies that the fair and reasonable value of the labor and material furnished in plumbing the fourth story was the sum of $2,645.54, or any other sum in excess of $976.84. It is also denied that any sum is due and unpaid. It is affirmatively alleged that, by the terms of the second contract, Dullanty was to be paid at the same rate and in the same proportion as he was paid for similar work under the first contract. Damages are also claimed by defendant on account of alleged defective work and material, and for delay arising from the acts of Dullanty. A trial was had before a jury, and a verdict was returned in favor of plaintiff in the total sum, including interest, of $2,270.15. Defendant moved for a new trial, which was denied, judgment was entered for the amount of the verdict, and defendant has appealed.

It is first assigned that the court erred in refusing to make an order excluding witnesses from the courtroom during the trial. At the time appellant requested this order, all of respondent's witnesses were present in the courtroom while only one of appellant's was present. The court took the view that, as appellant's other witnesses were not then present, they would not know that they were under the rule of exclusion, and that the enforcement of the rule might result in placing the other side at a disadvantage. The more general rule upon this subject, as established by the weight of authority, is stated as follows: 'Such an order, upon the motion or suggestion of either party, is, as a matter of fact, rarely withheld; but, according to the general weight of authority, a party is not entitled to it as a matter of right, and the granting or refusal of such order is within the discretion of the judge. The action of the judge in the matter is not subject to review, at least in the absence of evident abuse of such discretion.' 21 Enc. Pl. & Pr. pp. 983, 984. No evident abuse of discretion appears in this case, and the matter is therefore not reviewable.

It is contended that the court erred in denying appel...