Hawkins v. Reber

• Decision Date: 10 August 1914
• Docket Number: 11983.
• Citation: 142 P. 432,81 Wash. 79
• Parties: HAWKINS v. REBER.
• Court: Washington Supreme Court

142 P. 432

81 Wash. 79

HAWKINS v. REBER.

No. 11983.

Supreme Court of Washington

August 10, 1914

Department 2. Appeal from Superior Court, King County; Mason Irwin Judge.

Action by Dorothy Hawkins against Frank Reber. Judgment for defendant, and plaintiff appeals. Affirmed.

Alfred Gfeller, of Seattle, for appellant.

Williamson Williamson & Freeman, of Tacoma, for respondent.

MOUNT J.

The plaintiff brought this action to recover the alleged reasonable value of services rendered by the plaintiff to the defendant between September 1, 1899, and May 1, 1910. The amount claimed is $9,600, and legal interest thereon. The defendant answered the plaintiff's complaint and denied generally the allegations thereof. For a first affirmative defense the defendant pleaded a prior action between the parties as a bar to this action. For a second affirmative defense the defendant alleged that on the 2d day of May 1910, the plaintiff and the defendant settled all their differences, and in consideration of that settlement the defendant paid to the plaintiff $1,200, in full settlement of all claims against him. The plaintiff replied, admitting the former action and the judgment therein, as alleged in the first affirmative defense, but denied that that judgment was a bar to the present action. The plaintiff also admitted the receipt of the $1,200, as alleged in the second affirmative defense, but alleged that that money was paid to the plaintiff as consideration for the execution of certain deeds. The plaintiff also denied that there had ever been any settlement or compromise of the claim upon which the action was founded. Attached to the defendant's answer is a copy of the original complaint, answer, reply, findings of fact and the judgment of the trial court in that action between the same parties. After the plaintiff had filed her reply, the trial court sustained a motion for judgment on the pleadings, and dismissed the action. The plaintiff has appealed.

But one question is presented in the briefs, and that is whether or not the prior action is res judicata and a bar to this action. The appellant argues that the first action was based on a contract of partnership between the parties, and that this action is for the reasonable value of services rendered during the same period of time, and that the former suit, upon an express contract, is not a bar to the second suit upon a quantum meruit for the same services when it takes different evidence to establish it. Buddress v. Schafer, 12 Wash. 310, 41 P. 43, Thayer v. Harbican, 70 Wash. 278, 126 P. 625, and Egbers v. Fischer, 73 Wash. 308, 131 P. 1128, are cited to sustain this position

It is probably true that where the plaintiff alleges an express contract, and fails to prove such a contract, and the suit is dismissed for that reason, an action upon a quantum meruit may be afterwards maintained. But in this case an inspection of the pleadings in the former action shows that the respondent in this action (the defendant in that action) not only denied the partnership but as an affirmative defense alleged that prior to the beginning of that action, and on May 2, 1910, the plaintiff and the defendant, by mutual agreement, settled all matters of difference between them and in consideration thereof the defendant executed and delivered to the plaintiff his check for $250 and 19 promissory notes for $50 each, and thereafter delivered...