Marvin v. Yates

• Court: Washington Supreme Court
• Writing for the Court: HADLEY, J.
• Citation: Marvin v. Yates, 26 Wash. 50, 66 P. 131 (Wash. 1901)
• Decision Date: 05 September 1901
• Parties: MARVIN v. YATES.

66 P. 131

26 Wash. 50

MARVIN v. YATES.

Supreme Court of Washington

September 5, 1901

Appeal from superior court, Spokane county; Leander H. Prather Judge.

Action by W. H. Marvin against George W. Yates, as executor of the estate of Lafayette Woodward, deceased, to recover for services rendered said deceased. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Danson & Huneke and Hahn, Belden & Hawley, for appellant.

W. C Jones and P. F. Quinn, for respondent.

HADLEY J.

The complaint in this cause avers, in substance, that between the 1st day of January, 1887, and the 1st day of January, 1893 the respondent, at the special instance of Lafayette Woodward, now deceased, rendered continuous services to said Woodward in the management of his business, property, and affairs in Spokane county, which services were of the reasonable worth and value of $400 per annum; that on or about the 1st day of January, 1887, respondent and said Woodward entered into an agreement whereby said Woodward agreed to furnish respondent funds for investment in real estate in the city of Spokane when, in the judgment of respondent, such investment would be profitable; that the said real estate so purchased should be sold when, in respondent's judgment, it was advisable to do so, and respondent should receive as compensation for his services in making such investment one-half of the net profits realized by the sale of such property; that in pursuance of said agreement respondent purchased a large amount of real estate in the city of Spokane, a part of which was sold at a large profit, and a part of which said Woodward refused to sell when advised and requested by respondent so to do, and the same is still held and owned by his estate; that the profits resulting from the said investment in which the property was sold or otherwise disposed of amounted to more than $14,100, and the profits that would have accrued to respondent upon the other property when respondent advised its sale amount to more than $4,000. It is further alleged that on or about the 1st day of June, 1889, respondent and said Woodward had an accounting concerning the matters hereinbefore set forth, and said Woodward then promised to convey or bequesth to respondent, in payment of the claim above set forth, a certain lot and the building thereon situate in the city of Spokane, known as the 'Howard Saloon,' and that said property now is, and at all times since said settlement has been, of the value of more than $12,000; that in the month of March, 1899, said Woodward died at Minneapolis, Minn., his place of residence, and left a will, wherein he bequeathed the said property above mentioned, and all other property belonging to him at the time of his death, to other persons than respondent. It is next alleged that on the 19th day of May, 1899, the appellant, George W. Yates, was by the superior court of Spokane county duly appointed executor of the will of said deceased, Woodward; that on the 28th day of June, 1899, respondent presented his claim against the said estate to said executor, which was on the same day by him rejected. The complaint concludes with a prayer for judgment in the sum of $11,850. A demurrer to the complaint was, by the court, overruled, and exception to such ruling was duly taken by appellant. Thereupon appellant answered the complaint, and admitted the death of said Woodward, the appointment of appellant as executor, and the presentation and rejection of the claim, as alleged in the complaint. The remaining material allegations of the complaint are denied, and it is alleged affirmatively that, if any agreements were made, they were made orally, and not in writing, and that the last services performed by respondent, if any were performed, were rendered not later than January 1, 1893, more than three years prior to the bringing of this action. The reply alleges that during all of the times mentioned in the complaint the said Woodward was a resident of the state of Minnesota, and was not in the state of Washington, where the respondent resided, except casually, while passing through the state, and that he never stopped or remained in the state of Washington during said time to exceed 90 days in the aggregate. Upon the issues thus formed a trial was had before a jury. The appellant introduced no evidence. A verdict was returned in favor of respondent for the sum of $9,450. A motion for a new trial was interposed by appellant, which was, by the court, denied, and judgment was thereupon entered against appellant for the amount of the verdict. From said judgment this appeal is prosecuted.

It is assigned as error that the court overruled the demurrer to the complaint. Upon the motion of appellant before the demurrer was filed, the respondent furnished a bill of particulars showing that the alleged agreements were oral. It is therefore argued upon demurrer that, if the complaint states a cause of action at all, it is one upon an account stated; that respondent must be confined in his proof to the account stated, and must recover upon that theory, if at all; and, furthermore, that the promise to convey or devise a certain piece of real estate, being oral, is within the statute of frauds, and cannot be enforced. Appellant's counsel urge this theory of the complaint with much energy. The court below adopted a different view of the complaint, and, we think, was not in error in that particular. The averment with regard to the agreement at the time the accounting was had is that the deceased, Woodward, promised to convey or bequeath a certain piece of real estate, which was and still is worth more than $12,000. The prayer of the complaint asks for judgment in the sum of $11,850. If respondent had intended his complaint to be one upon an account stated, he certainly would have demanded judgment for the full value of that which he alleges he was to receive under the agreement at the time of the so-called 'accounting.' That value is stated to be more than $12,000. He, however, alleges that he performed certain services of a given value, and that in pursuance of the agreement concerning investments in real estate there accrued profits of stated amounts, to one-half of which he is entitled. One item of accrued profit is stated as being 'more than $14,100,' and another as 'more than $4,000.' An aggregate of these is more than $18,100. One-half of the amount specifically stated as profits is $9,050, and, if there is added to that sum $2,400 as the amount alleged to be due for six years of services, the sum becomes $11,450. The prayer of the complaint is for $400 more, presumably to cover the margin of the additional amounts indicated by the language of the complaint as above shown. We think a reasonable interpretation of the meaning of the pleader is that the averments concerning the accounting and the promise then made are intended to be in the nature of evidentiary matter, and as showing an admission of liability on the part of the deceased, Woodward. Appellant urges that, if the complaint is not treated as one upon an account stated, then there is an improper commingling of two causes of action,--one upon a quantum meruit for services rendered, and one upon the contract as to division of profits. The demurrer, however, does not specify that ground of objection. The only grounds mentioned are that the complaint does not state facts sufficient to constitute a cause of action, and that the action has not been commenced within the time limited by law. The trial, therefore, properly proceeded upon any cause or causes of action stated in the complaint. That the complaint stated a cause of action against general demurrer, we think is clear. As to the second ground of demurrer,--that the action was not commenced within...