Knatvold v. Rydman, 29885.

• Decision Date: 19 June 1947
• Docket Number: 29885.
• Citation: 182 P.2d 9,28 Wn.2d 178
• Parties: KNATVOLD v. RYDMAN et ux.
• Court: Washington Supreme Court

182 P.2d 9

28 Wn.2d 178

KNATVOLD v. RYDMAN et ux.

No. 29885.

Supreme Court of Washington, En Banc.

June 19, 1947

Action by Camilla M. Knatvold against E. A. Rydman and wife for an accounting, to recover amount due under contract, and to restrain defendant from interfering with plaintiff's oyster beds, wherein the named defendant filed counterclaims. From an adverse judgment, the defendants appeal.

Judgment modified and as modified affirmed.

Appeal from Superior Court, Pacific County; J. M Phillips, Judge.

Fred M Bond, of South Bend, for appellants.

F. W Loomis, of Aberdeen, for respondents.

HILL, Justice.

Respondent and appellant E. A. Rydman entered into the following contract 'This Agreement, dated this 23rd day of March, 1943, by and between Camilla M. Knatvold and E. A. Rydman, Witnesseth:

'That said Rydman will move the oysters from B129, B130 and B131, to B98, and will harvest the same within the next two years. Rydman will furnish all equipment and labor and the gross proceeds from said oysters will be divided fifty-fifty.

'That said Rydman will break up and scatter the oysters on B61 and 62, furnishing labor and equipment and that said oysters will be harvested within the next two years on a fifty-fifty gross basis.

'It is agreed that Rydman may harvest any oysters now mature from B98 and B61 and B62 this spring; also any oysters now ready for the market on A90.

'It is agreed that Rydman is to receive 10% of the proceeds from any seed sold on the beds during 1944, and he is to supervise and check same.

'Dated at Seattle, Washington, this 23rd day of March, 1944.

'Camilla M. Knatvold [signed]

'E. A. Rydman [signed]'

Thereafter, on October 24, 1944, respondent advanced four hundred dollars to appellant E. A. Rydman to aid him in purchasing a boat and bateau, which money was to be repaid in ninety days, with interest at four per cent.

In May, 1945, respondent commenced this action against appellants E. A. Rydman and Jane Doe Rydman, his wife. He will hereafter be referred to as though he were the only appellant.

To summarize a very lengthy amended complaint, respondent alleged, for a first cause of action, the execution of the contract of March 23, 1944; that it was understood and agreed that the oysters on tracts B-129, B-130, and B-131 were to be moved to B-98 immediately following the execution of the contract referred to, and that the moving contemplated the proper breaking up and planting of the same; and that it was further understood and agreed that the breaking and scattering of the oysters on B-61 and B-62 was, likewise, to be done immediately following the execution of the contract. She further alleged that none of the work had been done by the appellant, although he had frequently been requested to proceed therewith; that because of his failure to perform what was, to her, the principal consideration for the contract, she gave notice, on March 5, 1945, that the contract was terminated and canceled, and demanded an accounting and payment in full for all oysters which had been removed and/or sold. She alleged, further, that he threatened to continue to sell oysters from her property; that he had accounted to her for only $1,068.25 of the $11,304.50 he had received from the sale of oysters from her property; and that he was unable to pay her any appreciable part of the amount due her.

As a second cause of action, she alleged the advance of four hundred dollars for the purpose and on the terms above referred to; that it had not been repaid; and that he had sold the boat (the bill of sale for which had been taken in her name as security) without her knowledge or consent, and had 'appropriated the proceeds to his own use and benefit.'

In her prayer, she asked that the court adjudge that the agreement of March 23, 1944, had been terminated and that the appellant had no further interest therein; that he be restrained from interfering with her oyster beds; that he be required to produce his books and furnish an accounting of all his transactions under the contract; and that she have judgment for $10,236.25, or such other sum as might represent the proceeds from his sales of oysters from the beds owned by her.

The appellant answered, denying any violation of the contract, alleging a waiver of his failure to perform, and also setting up three counterclaims.

The trial court made extensive findings of fact, including findings that the 'real and principal and practically the only consideration' for the contract dated March 23, 1944, was the moving, breaking up, and scattering of the oysters as provided for in the contract (this being the only thing of any substantial value to respondent which appellant was required to do thereunder), within a reasonable time from the date thereof; that appellant had done none of that work; that respondent had the right to and did cancel the contract on March 5, 1945; that appellant had sold oysters belonging to respondent, for which he had received $11,464.50, of which $5,732.25 belonged to the respondent; that only $1,068.25 of this amount had been paid to her prior to her cancellation of the contract on March 5, 1945; that she was entitled to interest at six per cent per annum on the balance, to wit, $4,664, from March 5, 1945, to August 8, 1945, on which date and during the course of the trial, an additional $1,225.90 was paid to her; and that she was entitled to interest of six per cent per annum on the balance of $3,438.10 from August 8, 1945, until paid.

The trial court further found that there was due four hundred dollars on the second cause of action, with interest at four per cent annum from October 24, 1944; that the boat and bateau were still in the possession of appellant; and that the bill of sale was in the name of respondent as security for the sum advanced.

From these and other findings, the court concluded that the contract of March 23, 1944, was properly terminated and canceled; that the respondent was entitled to a judgment of $3,438.10, with interest at six per cent per annum from August 8, 1945, together with interest at six per cent on $4,664 from March 5, 1945, to August 8, 1945, on her first cause of action; and to four hundred dollars plus interest at the rate of four per cent from October 24, 1944, on her second cause of action, which amount was a lien on the boat and bateau for the purchase of which the fourhundred-dollar advance had been made. Judgment was entered for the respondent in accordance with these findings and conclusions.

The appellant makes twenty-six assignments of error, the last one of which is divided into four parts, (a), (b), (c), and (d). We will now dispose of these assignments of error seriatim.

Assignment of error No. 1. The trial court erred in overruling appellant's demand for a bill of particulars of the alleged amount, $11,304.50, for the sale of oysters.

The information sought was peculiarly within the knowledge of the appellant, as he had made the sales. There is no merit in this assignment of error.

Assignment of Error No. 2. The trial court erred in overruling appellant's demurrer to the amended complaint.

Appellant cites, without argument, the case of Wiegardt v. Becken, 8 Wash.2d 568, 113 P.2d 60, 143 A.L.R. 1208, to support his statement that the amended complaint did not state a cause of action. That case held, in an action for an accounting, that a plaintiff must allege a prior demand for an accounting and the refusal of the defendant to account. Such a demand was contained in the notice of cancellation of contract, dated March 5, 1945, which was set out in the amended complaint, and the refusal of the defendant (appellant) could readily be inferred.

Appellant's principal contention here is that there was a mis-joinder of a contract and a tort action, his position being that the second cause of action was for the conversion of the boat and bateau. That cause of action was clearly to recover the four hundred dollars advanced for the purchase of the boat and bateau, and the allegation relative to his having sold the boat and appropriated the proceeds to his own use was surplusage and did not make the cause of action sound in tort.

Assignments of Error Nos. 3 to 16 inclusive. The trial court erred in making findings of fact Nos. 3 to 10 and 12 to 17, inclusive.

The assignments that the trial court erred in making fourteen findings of fact, without any attempt to show wherein the findings were erroneous or lacked evidenciary support, is an invitation to us to search the record and see if we can find any error. It is not our function or duty to search the record for errors, but only to rule as to errors specifically claimed. Bristol v. Streibich, 24 Wash.2d 657, 167 P.2d 125, 126. In that case, the court said:

"IV. The court erred in signing and filing the Findings of Fact proposed by the plaintiff.'

'In what respect? Here, again, the burden is put upon the court of searching through the findings to see if, perchance, it can locate some error or errors therein. It is the appellants' duty, in assigning error in the findings, to point out the portion or portions thereof which they claim to be erroneous.'

However a study of the record convinces us that there was ample evidence to support every finding of fact made by the trial court except, possibly, that part of No. 12 where, by what is really a conclusion of law, the court found or concluded that the respondent was entitled to only one half of the $11,464.50 which the appellant had received from the sale of her oysters, or $5,732.25. We question whether appellant was entitled to so generous a compensation for doing practically nothing. This error, if any, was not prejudicial to appellant, but was definitely beneficial. ...