Haag v. Revell, 30037.

• Decision Date: 16 September 1947
• Docket Number: 30037.
• Citation: 184 P.2d 442,28 Wn.2d 883
• Parties: HAAG v. REVELL.
• Court: Washington Supreme Court

184 P.2d 442

28 Wn.2d 883

HAAG v. REVELL.

No. 30037.

Supreme Court of Washington

September 16, 1947

Department 1

Appeal from Superior Court, Yakima County; Dolph Barnett, Judge.

Action by Roland Haag against Jessie Revell for breach of an employment contract and an accounting, in which defendant filed a cross-complaint for the unpaid balance of an amount loaned plaintiff and a lien on his automobile. From an order dismissing the action, plaintiff appeals.

Affirmed.

J.P Tonkoff and Elery A. Van Diest, both of Yakima, for appellant.

Harcourt M. Taylor, of Yakima, for respondent.

ROBINSON, Justice.

This is an action for breach of contract and an accounting. Jessie Revell, the defendant below, owned a twenty-acre tract of land in Yakima county, Washington, of which about seventeen acres were devoted to the raising of fruit. The plaintiff Roland Haag, alleged that, in October, 1944, Mrs. Revell employed him, by oral contract, for a period beginning November 1, 1944, and ending November 1, 1945, to care for and maintain the orchards, agreeing that he would be furnished a dwelling on the premises for himself and family receive the sum of one hundred dollars per month, and, after the harvest and sale of the fruit, ten per cent of the net proceeds. He alleged that he performed all of the appropriate and necessary duties of his service until May 6, 1945, on which date he claimed to have been discharged without cause. He further alleged that he had good grounds to believe that the gross receipts of the crop of pears for the 1945 season was fifteen thousand dollars, peaches, seven hundred fifty dollars, cherries, one hundred fifty dollars, and that, in addition to these crops, the defendant harvested approximately fifty tons of prunes and a large quantity of plums. He further alleged, on information and belief, that the defendant was indebted to him in excess of two thousand dollars, and prayed that an accounting be ordered, and that judgment be entered in his favor for the amount therein determined.

The defendant, answering, admitted the making of a contract and that she discharged the plaintiff as alleged, but denied the allegation that she did so without cause. She also set up, in an affirmative paragraph, that plaintiff neglected to perform his agreement, in that he failed to prune the orchard in the winter season when she was absent in California, making it necessary for her to have the work done by others, and during her absence she sent the plaintiff three hundred dollars to be used in getting the pruning done, only a portion of which he expended for that purpose.

The defendant also cross-complained, alleging that, at plaintiff's request, in January, 1945, she loaned the plaintiff three hundred forty dollars for the purpose of making a final payment on his car, and it was agreed that for her security, he would take title to the car in her name and further permit her to retain twenty five dollars per month out of his salary until the debt was discharged. Out of this amount seventy-five dollars had been so collected, leaving the plaintiff owing her two hundred sixty-five dollars, for which she prayed judgment and a lien on the car for that amount.

The case was tried by the court. Two arguments were heard on the matter. At the second argument, defendant's attorney announced his client's willingness to dismiss her cross-complaint. The court then ordered the dismissal of the plaintiff's action, and it is from that disposition of the matter that plaintiff appeals.

It would be of no profit or use to anyone to enter into a detailed discussion of the evidence in this case. It may be said, however, that the defendant had a large fourteen-room house on the premises, of such construction as to lend itself to dual occupancy. The defendant retained one-half of the house for her own use; the plaintiff, his wife, and their small son occupied the other half. She furnished the plaintiff money with which to buy a cow, and, upon leaving in the late fall for a visit to California, signed checks in blank for his use in purchasing supplies needed for the operation of the orchards, for his wages, and other necessary purposes. There is quite persuasive evidence that he spent a great deal of the time in a nearby coffee house which should have been spent in pruning the orchards. Learning that the trees were not being pruned, the defendant wired the plaintiff three hundred dollars to hire pruners to attend to the job. Returning to her home in January, she found that the work had not yet been done and furnished additional sums for that purpose, in all, six hundred dollars, but she did not then and there discharge the plaintiff, and on that account the trial court seems to have seriously entertained the idea that the plaintiff's dereliction in that respect could be held to have been condoned.

Mrs. Revell testified that, after the pruning was done, there was a dangerous and unwarranted delay in attending to the calyx spraying, and that they were getting so behind in the general work of the orchards that she had to complain about it. She testified:

"Yes, I often mentioned to him that if we didn't hurry up and step on it we would not be through in time to pick."

However, the immediate cause of the plaintiff's discharge was of an entirely different nature. Mrs. Revell was attending a neighborhood party. Some wax was needed for the floor. She offered to go home and get the wax if someone would furnish the transportation. A Mrs. Basel did so. When they got to her home, plaintiff's car was standing in the driveway. It was dark, and Mrs. Revell did not know that plaintiff was standing on the porch and within hearing. We quote the defendant's testimony as to this incident:

"A * * * She [Mrs. Basel] said, 'How are we going to get around this here car?' I said, 'Oh, go around on the grass there.' I said, 'Everybody else does, it sits in the front of his door most of the time.' I said, 'There's a garage out there, but it's seldom ever in it.' She says, 'Well, we'll just shove it on out in the orchard.' I said, 'Oh, no, don't do that.' Right then he yelled out and he said, 'I would just like to see you do anything with that car.' So, I said to Bertha, 'Come on, let's get out of here, he isn't in very good tune,' and we just drove on out of the yard.

"Q. Is that all he said? A. Well, he swore some with it, because he wasn't in the right mood at that time to talk very pleasant. * * * That was Saturday night. Sunday morning I went off to church and came back and I didn't see them all day long. Monday morning I thought, well, it's about time now I seen that calyx spray get on, and I went in there and Roland was sitting in the corner, kind of grouchy-looking, and his wife was building the fire, and I said, 'Well, Roland, did you see Louie? Is he going to come over and help us spray?' and I thought he said, 'I suppose so'; and we sat down and she had the fire built and we sat down and was going to eat our breakfast, and then he said to me, he said, 'Why didn't you finish up that with Bertha out there about why I didn't have my car in the garage?' and I said, 'Well, why don't you have your car in the garage?' He said, 'Well, I can tell you the reason why I don't have my car in the garage'; he said, 'You got that God-dam barrel of gas sitting there and I can't get in and open my door'; and I said, 'Well, that can be moved,' and he said, well, it wasn't up to him to move it, and I said, well,--then he said to me, he said, 'It seems like to me you've been atrying to stir up something here for a month or more because I'm not doing what you think I ought to do'; and I said, 'No Roland, I'm not,' I said, 'but,' I said, 'we've got to get in and get things done, and, Roland,' I said, 'if I hadn't wanted you to come here, do you suppose that I would buy a cow, just me a lone woman, buy a cow to take care of just to get a little milk and butter?' I said, 'I bought that cow for

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