McCorkle v. Mallory

• Decision Date: 07 January 1903
• Citation: 71 P. 186,30 Wash. 632
• Parties: McCORKLE v. MALLORY.*
• Court: Washington Supreme Court

71 P. 186

30 Wash. 632

McCORKLE v. MALLORY.*

Supreme Court of Washington

January 7, 1903

Appeal from superior court, Thurston county; O. V. Linn, Judge.

Action by J. F. McCorkle against Henry Mallory. From a judgment for plaintiff, defendant appeals. Affirmed.

Troy & Falknor, for appellant.

W. I Agnew, for respondent.

MOUNT J.

On August 20, 1900, appellant and respondent entered into an agreement by which respondent was to cut saw logs from certain tracts of land and deliver these logs to appellant at his sawmill. Two causes of action are alleged in the complaint: (1) That appellant had violated the terms of the contract by requiring respondent to cease work thereunder and (2) that appellant had appropriated to his own use certain buildings and personal property used by respondent in performing the contract, and which were left by respondent upon the premises. Damages were demanded for breach of the contract, and also for the value of the property taken. Upon a trial before the court sitting with a jury, a judgment was recovered by the plaintiff (respondent here), and defendant appeals.

It is claimed that the court should have sustained the demurrer to the complaint (1) because there was a misjoinder of causes of action, and (2) because the complaint did not state facts sufficient to constitute a cause of action. The complaint, for a first cause of action, alleged the contract and a breach thereof and damages on account thereof. For the second cause of action, it alleged the same contract, and that plaintiff, in order to fulfill his contract, erected certain buildings and camp equipment on the premises, and that appellant wrongfully took possession thereof, and refused to deliver them to respondent upon demand. Both these causes of action arose out of the same matter, viz., the violation of the contract, and were therefore, under section 4942, subd. 1, 2 Ballinger's Ann. Codes & St., properly joined. The causes of action are separately stated, and each states a cause of action. The demurrer was properly overruled.

In the answer of appellant it was admitted that there was a contract entered into which was alleged to be in writing, a copy of which was set out in the answer. It was alleged that, by the terms of the contract, appellant was not required to take the logs at any particular time or in any particular quantity; that, when he refused to permit respondent to deliver logs for a certain time, he was acting within the terms of his contract, and there was, therefore, no breach thereof. Respondent in his reply denied that the contract was in writing, and denied that the contract set out in the answer was the contract between the parties, and alleged that the agreement was that respondent was to deliver logs at the rate of 15,000 to 20,000 feet per day, being the estimated capacity of the mill. It is claimed that this last allegation is a departure from the allegations in the complaint, and that the court erred in refusing to strike the reply. It is true that it was not alleged in the complaint at what rate per day the logs were to be delivered to appellant at the mill; but it was alleged that the appellant, without cause and against the desire of respondent, ordered and directed respondent to cease logging operations, and refused to allow respondent to cut and deliver logs under the contract, although respondent was at all times ready and willing to carry out his part of the contract. The reply did not attempt to set up a different contract from the one alleged in the complaint, or one inconsistent therewith, nor to enlarge the ground upon which recovery was originally sought. In addition to denying the contract set up in the answer, it set out more fully what the respondent claimed the contract really was, by way of denial of the right of appellant to terminate the same at his pleasure. New matter, not inconsistent with the complaint, constituting a defense to the new matter set forth in the answer, may be alleged in the reply. Commercial Electric Light & Power Co. v. City of Tacoma, 17 Wash. 661, 674, 50 P. 592; Manufacturing Co. v. Page, 28 Wash. 128, 68 P. 373. It was therefore not error to refuse to strike the reply.

The principal question in the case, both upon the pleadings and upon the trial, was as to the terms of the contract, and whether or not it was in writing. Appellant claimed it was in writing, and respondent claimed it was not in writing. Both parties admitted that there was a contract, but disagreed as to its terms. It was not claimed that the written contract was ever executed, but appellant claimed that the writing alleged in his answer, and introduced in evidence at the trial, contained all the terms of the contract, while respondent claimed that he had refused to execute the writing because it did not state all the terms thereof correctly, in this, to wit, that he was to be permitted to deliver 15,000 to 20,000 feet of logs per day. At the trial the court, at the request of appellant permitted the following special interrogatory to the jury: 'Did the contract, referred to in plaintiff's complaint as being made on August 20, 1900, contain the following clause: 'The logs to be delivered upon said landing as fast as required by said party of the first part, and of such length as ordered?'' The jury answered this interrogatory in the affirmative. It was not disputed on the trial that such provision was agreed to by both the parties, but the respondent claimed that the agreement...