International Development Co. v. Clemans

• Decision Date: 22 July 1910
• Citation: 59 Wash. 398,109 P. 1034
• Parties: INTERNATIONAL DEVELOPMENT CO. v. CLEMANS et ux.
• Court: Washington Supreme Court

109 P. 1034

59 Wash. 398

INTERNATIONAL DEVELOPMENT CO. v. CLEMANS et ux.

Supreme Court of Washington

July 22, 1910

Department 1. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action by the International Development Company against W. R Clemans and another. Judgment for plaintiff for nominal damages, and plaintiff appeals. Affirmed.

Danson & Williams, for appellant.

Forney & Moore and Samuel R. Stern, for respondents.

RUDKIN C.J.

This was an action to recover damages for breach of the covenants of warranty contained in a certain deed executed by E. M Sharon and wife, as grantors, in favor of the plaintiff herein, as grantee, for certain land in Adams county in this state. While the deed was executed by E. M. Sharon and wife, the complaint alleged that the Sharons held the title to the property as agents for the defendants, who were the real principals in the transaction and received the entire consideration for the conveyance. The deed contained a covenant of title and also a covenant against incumbrances, except a mortgage on the land in favor of the Northwestern & Pacific Hypotheek Bank in the sum of $4,800, and a mortgage in favor of one Flood in the sum of $3,000. The land was in fact subject to numerous other incumbrances, including a quitclaim deed executed by a former owner to the Bank of Lind, to secure certain indebtedness to the bank, upon which an action of foreclosure was pending at the time of the commencement of the present action. The complaint alleged a demand upon the defendants to satisfy and discharge the incumbrances against the property, but failed to allege either an eviction or a discharge of any of the incumbrances by the plaintiff. At the close of the testimony the court charged the jury that if they found in favor of the plaintiff, they should award nominal damages only, and that by nominal damages was meant $1 or less. The plaintiff thereupon asked leave to file an amended or supplemental complaint for the purpose of showing that a judgment of foreclosure had been entered in the action prosecuted by the Bank of Lind; that the property had been sold on execution and bought in by the bank, and that the bank had entered into possession of the property, all of which occurred since the commencement of the present action. Leave to file the amended or supplemental complaint was denied, and the jury returned a verdict in favor of the plaintiff for nominal damages.

From a judgment on this verdict the plaintiff has appealed, and the following questions are presented for the consideration of this court: First, in view of the failure of the complaint to allege either an eviction or a discharge of the incumbrances against the property by the appellant, did the court err in charging the jury that the appellant was entitled to recover nominal damages only; second, did the court err in refusing leave to file an amended or supplemental complaint; and third, did the court err in refusing to consider the complaint amended to conform to the proof, which tended to show that since the commencement of this action the property had been sold on execution, and that the purchaser at the sale had entered into possession?

1. In discussing the measure of damages for breach of a covenant against incumbrances, in 2 Devlin on Deeds (2d Ed.) § 916 the author says: ...