Megrath v. Gilmore

• Decision Date: 17 November 1896
• Citation: 46 P. 1032,15 Wash. 558
• Parties: MEGRATH v. GILMORE ET AL.
• Court: Washington Supreme Court

46 P. 1032

15 Wash. 558

MEGRATH v. GILMORE ET AL.

Supreme Court of Washington

November 17, 1896

Appeal from superior court, King county; T. J. Humes, Judge.

Action by John Megrath against David Gilmore and the executors etc., of William A. Kirkman, deceased, on a contract for the erection of the Arlington Hotel. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

For former report, see 39 P. 131, 10 Wash. 339.

Burke Shepard & McGilvra and Burke, Shepard & Woods, for appellants.

Stratton, Lewis & Gilman and Carr & Preston, for respondent.

SCOTT J.

This case was before this court upon a former occasion (10 Wash 339, 39 P. 131), to which reference can be had for a statement of the nature of the action. Pending the former appeal, Kirkman died, and it was stipulated in this court that the executors of his will might be substituted as defendants in his stead. When the second trial was begun, the defendants moved to dismiss the action as against Kirkman's executors on the ground that there is no survival of liability against the representatives of a deceased joint debtor. This point has been passed upon by this court contrary to appellant's contention since his brief herein was filed. Donnerberg v. Oppenheimer (Wash.) 46 P. 254.

It is next contended that the court should have granted the defendants' motion for a nonsuit as to the executors of Kirkman on the ground that the claim had not been presented to said executors, as required by sections 986, 988, 2 Hill's Code. Judgment had been obtained against Kirkman in the lower court during his lifetime. After the stipulation substituting his executors pending the appeal, they appeared herein, and contested the same, and obtained a reversal of the judgment, and ever since have been, and are now contesting it; so there can be no substantial merit in this contention, and to sustain it would be inconsistent, at least, with the decision of this court in the case of Strong v. Eldridge, 8 Wash. 595, 36 P. 696.

The third point is disposed of in what has been said, as that relates to the claim of release of Gilmore on the ground that the executors of Kirkman were released by the failure to present the claim to them.

The fourth point is that the complaint does not state facts sufficient to constitute a cause of action against the executors of Kirkman, because it does not show Kirkman's death, and the appointment and substitution of his executors; but we think this was immaterial, and that it was not necessary to file an amended complaint containing these formal allegations. The executors had, in fact, been substituted by the stipulation in this court.

It is next contended that the plaintiff cannot recover on the ground of there being a fatal variance between the contract...