Jones v. Matson

• Citation: 4 Wn.2d 659,104 P.2d 591
• Decision Date: 26 July 1940
• Docket Number: 27758.
• Parties: JONES et al. v. MATSON et al.
• Court: Washington Supreme Court

104 P.2d 591

4 Wn.2d 659

JONES et al. v. MATSON et al.

No. 27758.

Supreme Court of Washington

July 26, 1940

Department 2.

Action by T. P. Jones and others against J. M. Perry, which was based upon an alleged libel published by the defendant. Upon the death of defendant, Roy A. Matson and A. S. Coffin were appointed as administrators with the will annexed of the defendant's estate and were substituted as defendants. From a judgment abating and dismissing the action, the plaintiffs appeal.

Affirmed.

An action by plaintiffs who held option to purchase mining property based on alleged publication by defendant who was principal stockholder of corporation which owned the mining property, of a libel which allegedly caused third party, who had agreed to raise money necessary to plaintiffs' exercise of the option, to decline to fulfill agreement, did not survive death of defendant on ground of unjust enrichment of defendant's estate because of alleged fact that mining property was worth more than option price and that defendant's estate benefited from inability of plaintiffs to exercise the option, in absence of showing that specific property or proceeds of specific property came into hands of defendant's personal representative as result of alleged libel.

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

Richard S. Munter and H. E. T. Herman, both of Spokane, and Cheney &amp Hutcheson, of Yakima, for appellants.

Harcourt M. Taylor, of Yakima, for respondents.

JEFFERS Justice.

This is an appeal by plaintiffs, T. P. Jones, Roscoe A. Balch, F. J Rooney and Warren O. Dow, from a final judgment entered on May 6, 1939, by the superior court for Yakima county, abating and dismissing, by reason of the death of J. M. Perry, an action brought by plaintiffs against the deceased.

The first amended complaint, which was on file at the time of the death of Mr. Perry, and which will hereinafter be referred to as the complaint, alleged in substance stance as follows That the York Mines Corporation, at all times mentioned in the complaint, was the owner of certain placer mining property, referred to as the York property; that plaintiff T. P. Jones held an option to purchase such property from the corporation for $115,000; that this option was held by Jones under agreement for the benefit of all the plaintiffs, and that plaintiffs were co-partners and jointly and equally interested in the cost and labor involved and profits to be earned through the exercise of the option; that J. M. Perry was the principal stockholder of the corporation, and that prior to the claimed libelous matter referred to in the complaint, Perry was authorized, by resolution of the stockholders, to complete negotiations with reference to the sale of the mining property to plaintiffs, in accordance with their option to purchase.

It is further alleged that defendant Perry, knowing all these facts for a considerable time prior to the publishing of the libelous matter referred to, negotiated with plaintiffs and W. H. Abel, who for himself and associates had agreed to help plaintiffs raise finances necessary to exercise such option; that during the negotiations, plaintiffs were referred to by Perry as 'the Spokane outfit;' that such negotiations had proceeded to a point where defendant was apprised of the fact that plaintiffs would exercise their option, when, on July 27, 1937, defendant Perry wrote and mailed to W. H. Abel a letter which contained the following statement: 'Balch and Sheridan came over from Spokane and induced me to loan $17,000 on stock which they never had title to, and for which I could have prosecuted both of them. I fought this thing through two courts, have paid all the expenses for both Balch and myself in a damage suit.'

The complaint alleged that the purpose of publishing this false and libelous matter was to prevent Abel and his associates from furnishing plaintiffs with the sum of $75,000, which Abel and his associates were ready, able and willing to furnish, until the receipt by Abel of such letter; that because of the libelous matter contained in the letter to Abel, he and his associates refused to furnish the sum of $75,000, and because of the failure to obtain this money, plaintiffs were unable to avail themselves of their right under their option to purchase the York property, and to gain the profit which would thereby accrue to them.

The complaint sets out a letter from W. H. Abel to Mr. Perry, in answer to the Perry letter of July 27th, wherein Mr. Abel concludes as follows: 'I have known of you for many years as a cautious business man and I am sure that you would not make a statement in effect charging criminal conduct unless you could back it up, hence there is nothing for me to do but to decline to proceed further.'

The above letter was written by Mr. Abel on August 2nd, and on August 3rd Mr. Perry answered the letter, reaffirming, as appellants contend, the libelous matter contained in his former letter of July 27th.

It is further alleged in the complaint that plaintiffs had depended upon the ability of W. H. Abel to provide $75,000 for their use in the purchase of the York property, and had made no other provision for raising this money, and that because of the publication of this libelous matter, plaintiffs were unable to procure the $75,000 from other sources; that at all times prior to the publishing of such libelous matter, each and all of the plaintiffs enjoyed good business reputations, and the partnership referred to as 'the Spokane outfit' had and enjoyed a good business reputation.

Paragraph X of the complaint contains allegations from which plaintiffs arrive at the amount of recovery asked for, and are in substance as follows: That W. H. Abel and F. C. Keane were ready and willing to furnish plaintiffs a total of $150,000, to be used by plaintiffs for the recovery of gold of the value of $1,317,447.26; that the property contained gold of the value of $1,317,447.26, as had been demonstrated by the drill record of N.C. Sheridan, a mining engineer, such drill record consisting of a record of drill holes sunk under the direction of Mr. Sheridan, as shown by a map prepared and described as 'Map showing churn-drill data of portion of York Mines Corporation * * *,' which holes were drilled over a piece of the mining property approximately forty acres in extent; that the means by which the gold was to be recovered was by the operation of a dredge in the usual manner; that the cost of the dredge set up for operation would be the sum of $200,000; that the total amounts which it would be necessary to expend in order to make such recovery were: Cost of dredge, $200,000; cost of materials, supplies, labor, etc., $114,590.70; that the cost of the mining property, in accordance with the option, was $115,000, payable out of gold taken from the property; that there would thus be remaining, after deducting from the gold recoveries the amount needed for purchase of dredge, materials, supplies, and mining property, the sum of $887,856.56; that under an agreement entered into between plaintiffs and W. H. Abel and F. C. Keane, plaintiffs were to receive fifty per cent of the gold recovered, less one-half of the expense, and W. H. Abel and F. C. Keane and their associates were to receive fifty per cent of the gold recovered, less one-half of the expense; that by reason of the failure of W. H. Abel and associates to furnish $75,000, as hereinBefore alleged, plaintiffs were unable to exercise their option, and did therefore fail to recover gold worth $887,856.56 in excess of the cost of recovering the same, and that plaintiffs were thereby damaged, by reason of their failure to receive one-half of the gold recovered in excess of the cost of recovering same, in the sum of more than $400,000, for which amount plaintiffs asked for judgment against defendant.

The foregoing complaint was on file at the time of the death of defendant J. M. Perry, which occurred on October 1, 1938.

Roy A. Matson and A. S. Coffin were duly appointed and qualified as administrators with the will annexed of the estate of J. M. Perry, deceased, and on November of J. M. Perry, deceased, and on November asked to be substituted as defendants in this action. On November 5th, an order of substitution was duly made and entered.

On November 10th, Matson and Coffin, as such administrators, filed a motion for order of abatement of the action, based on the records and files appearing in the action.

On or about November 10, 1938, plaintiffs filed a claim against the estate of J. M. Perry, deceased, which claim set forth facts as alleged in the complaint, and also alleged that the estate of J. M. Perry had been enriched by the acts of J. M. Perry, in that stock in the York corporation held and owned by Perry had been increased in value. The above claim was rejected.

On November 26, 1938, plaintiffs filed a motion for substitution and for leave to amend, and also for leave to proceed with the action against the administrators with the will annexed. This motion was supported by the affidavit of Roscoe A Balch, dated November 12, 1938, which, in addition to setting out many of the facts alleged in the complaint, further averred that the community composed of J. M. Perry and Harriet Perry, his wife, was unjustly enriched at the expense of plaintiffs, in that by preventing plaintiffs from availing themselves of the benefits of the option, J. M. Perry regained for the York Mines Corporation those property rights to its placer mining property, which were of the value of $887,856.56 more than the sum of money required by the option to purchase, and that the value of the stock of the York Mines Corporation owned by the community consisting of Perry and...