Lawrence v. Pederson

• Decision Date: 02 January 1904
• Citation: 74 P. 1011,34 Wash. 1
• Parties: LAWRENCE v. PEDERSON.
• Court: Washington Supreme Court

74 P. 1011

34 Wash. 1

LAWRENCE v. PEDERSON.

Supreme Court of Washington

January 2, 1904

Appeal from Superior Court, King County; W. R. Bell, Judge.

Action by F. C. Lawrence against Cornelius Pederson. From an order granting plaintiff a new trial, defendant appeals. Reversed.

R. F. Lewis and Wright & Kelleher, for appellant.

Sweeney French & Steiner, for respondent.

HADLEY J.

Respondent brought this action to recover from appellant the sum of $2,325, alleged to be due and owing to respondent as a commission for effecting a sale of certain mining property in Alaska for appellant. The sause was tried before a jury, and at the close of the plaintiff's testimony the defendant moved for a nonsuit. The motion was granted and the jury discharged. The consideration which induced the court to grant the nonsuit appears to have been its construction of the written instrument pertaining to the sale of the mining property. That written instrument is as follows:

'Know All Men by These Presents: That this Indenture, made this 21st day of May, 1900, by and between Cornelius Pederson, the party of the first part, resident of Virgen Bay, Prince William Sound, Alaska, and J. D. Meenach, resident of Seattle, Wash., party of the second part, Witnesseth:

'That the party of the first part, for and in consideration of the sum of forty-six thousand five hundred dollars, lawful money of the United States of America, to be paid as follows: Two thousand five hundred dollars ($2,500.00) to be paid at the time of signing this bond, five thousand dollars ($5,000.00) to be paid on or before the 21st day of May, 1901, after the aforesaid time, vix., 21st May, 1901, the party of the first part is to receive twenty per cent. (20%) of the value of the ore, less seven dollars ($7.00) per ton, which is to be deducted for shipping and smelting charges; the party of the first part is to take eleven thousand two hundred and fifty dollars ($11,250.00) in stock at par value when issued. The stock to be nonassessable. The balance, twenty-seven thousand seven hundred and fifty dollars, is to be paid on or before the 21st day of November, 1902, for and in consideration of the before-mentioned moneys, the party of the first part agrees to sell the following described quartz mining property:

'The Copper King quartz lode and the Convict quartz lode, situate, lying and being in Virgen Bay, Prince William Sound, Alaska, and recorded in Prince William Sound Mining District, reference is hereby made to the records of the aforementioned mining district, for a full and complete description of above quartz lode. Upon payment being made, the party of the first part agrees to give to the party of the second part, good and sufficient deeds for conveying and assuring the title of above mining property free from all insumbrances, all of his right, title, interest, claim and demand, in and to all of the abovementioned quartz mines. It is hereby agreed and made a consideration, that the party of the second part is to commence work on the aforementioned quartz lodes on or before the 21st day of August, 1900, all payments to be paid in person, or deposited to the credit of the party of the first part at W. J. Busby's, Blighs Isld., Prince Wm. Sound; in the event of failure of the party of the second part to meet any of the aforementioned obligations, he forfeits all money or improvements to the party of the first part, as a penalty and liquidated damages.'

The court construed the instrument to be a mere agreement upon the part of appellant to sell when the proposed vendee should comply with all conditions named, and that the latter was not obligated to buy, but held a mere option to purchase, which he could exercise, or not, as he chose. It appeared at the trial that the payments had not been made, the time therefor not having expired, and the property had not been conveyed by appellant. It was contended by appellant--and his view seems to have been adopted by the court--that no sale had yet been effected; that the payment of the balance of the designated purchase price was merely optional with the prospective purchaser; that it might not be paid, and no sale might ever be effected. Respondent's demand for commission was based upon 5 per cent. of the entire selling price, and upon the claim that he had caused an actual sale to be effected. It was the view of the court that a completed sale had not been shown, and that respondent was for that reason not entitled to recover any commission at that time. Hence the granting of the nonsuit. The nonsuit was granted May 15, 1902, and thereafter respondent moved for a new trial for alleged errors of law occurring at the trial; particularly specifying that error was committed in withdrawing the case from the jury. The motion was taken under advisement for some months, and, pending a decision thereon, respondent filed a new motion, in the nature of a request for a reargument of the motion for new trial. The motion was accompanied by affidavits to the effect that since the granting of the nonsuit the balance of the purchase price of $46,500 had been paid, and the sale completed. The motion renewed the request for a new trial, and asked leave to amend the complaint, or file a supplemental complaint showing that such final payments had been made. On the 13th day of January, 1903, the court granted a new trial, and also leave the file an amended or supplemental complaint. The record shows that the court, in its oral decision, granted the motion upon the ground that the submitted affidavits showed a proper case for allowing the plaintiff to file an amended or supplemental complaint, and for allowing a new trial thereon. The order afterwards entered in the record contained the following: 'Now, therefore, it is ordered that the nonsuit heretofore granted be, and the same is hereby, set aside, and the plaintiff is granted a new trial upon the ground that, as set forth in the said motion and affidavits, payments have been made since the commencement of this suit, and the plaintiff is given permission to file an amended or supplemental complaint showing the above facts of payment, subject to the right of the defendant to have the form of the said amended or supplemental complaint settled by the court upon motion, demurrer, or otherwise, in the usual manner.' This appeal is from said order, and the only assigned error is that the court erred in making its order granting a new trial.

Inasmuch as the order appealed from specifies the exact ground upon which the court granted the new trial, showing that it involved a question of law, only, and not questions of fact appellant therefore urges that no other question should be considered here, within the rule followed in Gray v. Washington Water Power Co., 27 Wash. 713, 68 P. 360, and Gardner v. Lovegren, 27 Wash. 356, 67 P. 615. The sole ground upon which the court granted the new trial was that it appeared by affidavits which were submitted seven or eight months after the nonsuit that the selling price for the mining property had been fully paid since the nonsuit, and that ...