International Development Co. v. Clemans

• Decision Date: 16 January 1912
• Citation: 120 P. 79,66 Wash. 620
• Parties: INTERNATIONAL DEVELOPMENT CO. v. CLEMANS et ux.
• Court: Washington Supreme Court

120 P. 79

66 Wash. 620

INTERNATIONAL DEVELOPMENT CO. v. CLEMANS et ux.

Supreme Court of Washington

January 16, 1912

Department 2. Appeal from Superior Court, Spokane County; J. D. Hinkle Judge.

Action by the International Development Company against W. R Clemans and wife. Judgment for plaintiff, and defendants appeal. Reversed.

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

Danson Williams & Danson and George D. Lantz, for respondent.

DUNBAR, C.J.

The case out of which this case grew was before this court, and is reported in 59 Wash. 398, 109 P. 1034. The statement of that case was to the effect that the action was 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, the International Development Company, a corporation; the allegations being that, while the deed was executed by Sharon and wife, 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 covenants of title and also a covenant against incumbrances, except the certain incumbrance mentioned. The complaint alleged a demand upon the defendants to satisfy and discharge the incumbrance 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. 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; that the property had been sold on execution; that it had been dispossessed of the property; and that the purchaser had entered into the possession thereof. 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 plaintiff appealed, and this court sustained the judgment of the lower court, holding that only nominal damages could be obtained upon the breach of the covenant--citing 13 Cyc. 177, where it is said: 'The assessment of damages is usually governed by the situation or condition of affairs existing at the time the action is brought. Hence, for a recovery of loss or damages occurring thereafter, plaintiff should amend or file a supplementary petition.' On the other proposition it was held by this court that, inasmuch as the application to amend was not made until after the court had charged the jury at the close of the trial, this court could not hold that the trial court had abused its discretion. This action was afterwards brought to obtain substantial damages by reason of the fact of the violation of the warranty against incumbrances, and that plaintiff had been dispossessed in due course of law. Judgment was for the plaintiff.

Several assignments are made by appellants, but the first one discussed is that the plaintiff is estopped by the former adjudication. Appellants' contention in this regard must be sustained; for, while we have not been able to...