Kellogg v. Wilcox, 32924

• Decision Date: 05 May 1955
• Docket Number: No. 32924,32924
• Citation: 283 P.2d 677,46 Wn.2d 558
• Court: Washington Supreme Court
• Parties: Robert L. KELLOGG, Appellant, v. Bertine WILCOX, Respondent.

Page 558

46 Wn.2d 558

283 P.2d 677

Robert L. KELLOGG, Appellant, v. Bertine WILCOX, Respondent.

No. 32924.

Supreme Court of Washington, Department 1.

May 5, 1955.

Rehearing Denied July 21, 1955.

See 286 P.2d 114.

James O. Ballou, Longview, for appellant.

Ferguson & Burdell, Donald McL. Davidson, Seattle, for respondent.

DONWORTH, Justice.

This is an action by a building contractor to foreclose a lien claim in the amount of $11,371.31, which he alleged was the unpaid balance due for constructing a three-dwelling apartment house on a cost plus ten percent basis.

Defendant admitted the construction of the building, but in her cross-complaint alleged that the parties had entered into a written contract whereby plaintiff undertook to build the triples for thirty-five thousand dollars, which she had fully paid. She also alleged that plaintiff had failed to properly perform the contract in several particulars for which she sought reimbursement in the total amount of $2919.73.

In his reply plaintiff denied the material allegations of the cross-complaint and alleged a mutual mistake of fact between the parties as to the contract, and, on a quantum meruit basis, sought recovery of the items set forth in the complaint.

A trial was had on these issues which lasted five days. They testimony comprises nearly eight hundred pages and more than fifty exhibits were admitted in evidence. After the trial the court took the case under advisement and later filed a memorandum opinion holding that the parties had entered into a lump sum contract for thirty-five thousand dollars, which sum defendant had paid to plaintiff. The court further held that defendant should recover eight items of breach of contract under her cross-complaint aggregating $1,324.97, and, as an offset, the court allowed plaintiff recovery for nine changes and additions ordered by defendant during the construction totaling $453, leaving a net balance due defendant of $871.97.

Findings of fact and conclusions of law were entered in accordance with the memorandum opinion. After plaintiff's motion for new trial was argued and denied, the court entered its judgment dismissing the complaint and awarding recovery of $871.97 to defendant on her cross-complaint.

Plaintiff has appealed from this judgment and in his brief sets forth thirty-nine assignments of error. In addition to his argument in support of certain of these assignments, plaintiff refers us to sixty-three places in the statement of facts where he claims that the trial court erroneously admitted or rejected certain testimony.

Respondent has moved to strike appellant's brief on the ground it contains scandalous attacks on the demeanor and even the integrity of the trial judge in the conduct of the trial without any foundation therefor in the record. We have given careful consideration to the several instances where appellant's brief makes reference to the trial judge's attitude toward appellant's counsel and find no justification whatever for the intemperate language used.

In Sawdey v. Spokane Falls & Northern Railway Co., 27 Wash. 536, 67 P. 1094, and in Coats v. Seattle Electric Co., 37 Wash. 8, 79 P. 484, we granted similar motions for the reason that appellant's brief was disrespectful of the trial judge without the slightest justification. In the Sawdey case, we said [127 Wash. 536, 67 P. 1095] '* * * If counsel, in this instance, intended, as they seem to claim, simply to allege in a proper and unobjectionable manner that the trial court committed error in its ruling, it would seem that they were extremely unfortunate in the 'selection of words' to express such intention. The meaning of the language objected to is so plain and obvious that it cannot be changed by any amount of subtle reasoning or plausible argument. Of course, counsel have the right to allege errors, to comment on the rulings and decisions of the court, to present their views upon pertinent questions of law or fact, and to maintain the same freely and fully by argument; but in so doing it is their duty to keep strictly within the bounds of professional propriety, and especially to abstain from all disrespectful and discourteous expressions in regard to the court. The duties of attorneys are prescribed by law in this state, and, among other provisions of the statute, is the following: 'It shall be the duty of an attorney and counselor: * * * (2) To maintain the respect due to the courts of justice and judicial officers.' And we are compelled to say--though not without regret--that the language of this brief presents a conspicuous example of a violation of the duty thus enjoined upon counsel. The learned superior court was in duty bound to pass upon the motion presented by the respondent, and the language of counsel for appellant with reference to its action thereon is wholly improper and indefensible, and cannot be tolerated or overlooked by this court. * * *'

Similarly in American Bonding Co. v. Dufur, 49 Wash. 632, 96 P. 160, appellant's brief contained discourteous and impertinent language in referring to the trial judge. No motion to strike the brief was made and the case was decided on the merits.

The most recent case which we have found involving a similar situation is Pasco Fruit Lands Co. v. Timmermann, 88 Wash. 112, 152 P. 675, 677, where, in passing upon a motion to strike appellants' brief upon the same ground as urged here, we said:

'* * * Respondents move to strike appellants' brief because of the use of discourteous language in referring to the trial judge. The language complained of will not be set forth. It merits the charge made against it, and counsel for appellant are censured for its use. To strike the brief, however, would mean either that the court must assume the added burden of reviewing the case without the aid of appellants' brief, or we must order the filing of a new brief, and await the determination of the appeal until its arrival and examination. The first of these alternatives we do not care to assume. The second would only mean additional cost and delay to both parties. We have therefore concluded, since the language complained of cannot be overlooked, and deserves more than censure, to disallow appellants the cost of printing their opening brief of 117 pages, and it is so ordered.'

Since upon our consideration of the merits (as hereinafter discussed) we have come to the conclusion that the judgment of the trial court in this case must be affirmed, we are unable to impose the penalty of disallowing the cost of printing appellant's brief as was done in the Timmermann case.

In the present case the trial judge conducted the trial with patience, dignity, and impartiality. We are of the opinion that counsel for appellant should be censured for the language used in their brief in reference to a number of the trial court's rulings and that we would be entirely justified in granting respondent's motion to strike appellant's brief. However, as pointed out in the Timmermann case, this would mean additional cost and delay to both parties. Since no penalty by way of disallowance of costs is available, we have determined to, and hereby do, reprimand appellant's counsel, deny the motion to strike the brief and proceed to a consideration of the merits of the case. In so doing, of course, appellant's assignments of error are being considered by this court in the same manner as they would have been if his brief had contained no improper characterization of the proceedings in the trial court. Shannon v. Loeb, 65 Wash. 640, 118 P. 823.

We now come to a consideration of the first assignment of error which challenges finding of fact No. VI. This relates to the principal issue of fact in this case, which was whether there was an oral cost plus ten percent contract between the parties to build the triplex or a written fixed sum contract to build it for thirty-five thousand dollars. Except for one discussion at which respondent's architect was present, all negotiations between the parties took place when they were alone. The determination of this issue depends upon the relative credibility of the two litigants.

In its memorandum opinion, and in its findings of fact, the trial court found in favor of respondent on this vital issue. In the memorandum opinion the trial court summed up the evidence as follows:

'After careful consideration of all the testimony, it is my conclusion that the plaintiff has failed to sustain the burden of proof in showing that a contract was entered into upon a cost plus basis and has failed to show that he is entitled to recover the amount contended for upon a quantum meruit basis. On the other hand, I am convinced from all the evidence that the plaintiff made a written proposal, plaintiff's Exhibit B, which was modified, amended and initialed by the parties, wherein he agreed to construct the building for $35,000.00; that within a short time after the proposal was submitted, the defendant accepted it and the parties proceeded thereunder, and the plaintiff has been paid in full.'

Appellant, in his brief, quotes from the testimony of respondent given at the trial and in her discovery deposition, and refers to certain exhibits for the purpose of demonstrating that the evidence preponderates against finding No. VI. From our examination of the entire record, we cannot say that the evidence preponderates against this finding, and, consequently, we must accept it as a verity. Corbett v. Ticktin, 43 Wash.2d 248, 260 P.2d 895.

The trial court, after hearing the contradictory versions of the negotiations and dealings between the parties, chose to believe respondent. In McDonald v. Wockner, 44 Wash.2d 261, 267 P.2d 97, 101, a case involving the relative credibility of the two litigants, we quoted with approval the following statement from Lalley v. Lalley, 43 Wash.2d 192, 260 P.2d 905:

"Appellant and respondent were the only witnesses. Two theories were presented. The trial court...