Pinnell v. Copps

• Decision Date: 15 November 1928
• Docket Number: 21307.
• Citation: 149 Wash. 578,271 P. 882
• Parties: PINNELL v. COPPS.
• Court: Washington Supreme Court

271 P. 882

149 Wash. 578

PINNELL v. COPPS.

No. 21307.

Supreme Court of Washington

November 15, 1928

Department 1.

Appeal from Superior Court, King County; John A. Frater, Judge.

Action by Sherman A. Pinnell against W. O. Copps, as administrator of the estate of Dennis Curran, deceased, to establish a claim. Judgment for plaintiff, and defendant appeals. Reversed, with directions.

Stanley J. Padden and George F. Ward, both of Seattle, for appellant.

A. A Anderson, of Astoria, Or., and Reames & Moore, of Seattle for respondent.

BEALS J.

Sometime prior to 1898, Dennis Curran married Eliza Pinnell, who was then a widow with two sons by a former marriage. One of these sons, Sherman A. Pinnell, was then married and had a 2 year old daughter. All the parties were residents of Astoria, Or and for a time Mr. and Mrs. Curran lived in the same house with her son Sherman and his family. In 1898, Dennis Curran went to Alaska, where he remained for approximately 20 years. He did not send his wife any money, nor did he communicate with her in any way, and she thought him dead. Eliza Curran continued a member of her son's household until about 1900, when he and his family moved from the house which they had been occupying with his mother and set up their own establishment. In 1906, Eliza Curran moved to the home of her sister, a Mrs. Clark, at Ocean Park, Wash., where she resided until Mrs. Clark's death in 1909. Mrs. Curran inherited some property from her sister and continued to make her residence at Ocean Park until her death in 1921.

In 1918, Dennis Curran reappeared upon the scene and he and his wife resumed the marital relation and lived together at Ocean Park until her death. Mrs. Curran left some property which was divided equally between her surviving husband and her two sons. Dennis Curran died June 30, 1926, and the defendant W O. Copps was by the superior court for King county appointed administrator of his estate. The administrator published notice to creditors, and thereafter and within the time limited therein for the presentation of claims against said estate, plaintiff presented his claim in the sum of $5,860 for money and supplies furnished to his mother, Eliza Curran, during the period Dennis Curran was absent in Alaska, and for the further sum of $280 which he claimed as rent due him from Dennis Curran on account of the occupation by Curran of a certain dwelling house at Ocean Park, the property of claimant. Upon his claim being rejected by the administrator, plaintiff instituted this action, and, upon a trial thereof to a jury, a verdict was rendered in favor of plaintiff for the sum of $5,860, being the exact amount claimed by plaintiff as due him for money and necessaries furnished by him to his mother during his stepfather's absence in Alaska, as set forth by plaintiff in the first cause of action contained in his complaint; the second cause of action therein being for the item of rent mentioned by plaintiff in his claim as filed with defendant, as administrator.

It is evident that the jury found in plaintiff's favor upon the first cause of action and against him on the second, and we consider the case on the basis that the recovery was only on the first cause of action.

Defendant moved for judgment in his favor notwithstanding the verdict, or, in the alternative, for a new trial, and, upon the denial of these motions and the entry of judgment in plaintiff's favor upon the verdict, appealed to this court.

Appellant assigns several errors, the first being that the court erred in refusing to direct judgment for the defendant and in entering judgment for the plaintiff; and, second, that the court erred in refusing to dismiss the action upon the ground that it is barred by the statute of limitations. Other errors are assigned, but, in view of the fact that in our opinion the second assignment of error is well taken, it is not necessary that the others be discussed.

Dennis Curran returned from Alaska in November, 1918, and respondent does not claim that he furnished money or necessaries for his mother after that date. He bases his claim against appellant administrator upon the ground that Dennis Curran should have supported his wife during the period he was absent in Alaska, and that, because he failed to do so, and because respondent did assist Mrs. Curran, his mother, with money and necessaries, Dennis Curran became liable to him upon an implied contract in a sum equal to the amount of money which respondent delivered to his mother, plus the value of the supplies which he furnished her during that time. No writing is produced which supports any liability on the part of Dennis Curran or his estate, and respondent bases his claim upon an implied contract which under the law is subject to be barred by the 3-year statute of limitations (Rem. Comp. Stat. § 159).

Respondent's entire case is nebulous and hazy in the extreme, but for the purpose of this opinion we assume, without deciding, that testimony was introduced which, if believed by the jury, would support a finding that an implied contract once existed whereby Dennis Curran was obligated to reimburse respondent in accordance with respondent's claim, or at least to some extent.

To escape the bar of the statute, respondent relies upon the fact that Dennis Curran, very shortly before Christmas Day, 1923, purchased in the city of Portland certain articles of household furniture and caused the same to be delivered to respondent in Astoria. This furniture consisted of a davenport, a lamp, and several other articles, and it clearly appears that the articles were of good quality and of substantial value. Respondent asserts that the delivery of this furniture constituted a payment by Mr. Curran to respondent on account of the indebtedness which he claims existed in his favor and started anew the running of the statute.

It may be remarked that it appears beyond question that respondent and his stepfather, Dennis Curran, were at all times after Mrs. Curran's death upon the best of terms; that Mr. Curran was welcome in respondent's home, was fond of respondent's children, and even lent respondent considerable sums of money, which respondent repaid without question, one note for $1,000 secured by mortgage, having been paid by respondent after Mr. Curran's death to appellant as his administrator. Over 5 years had elapsed from the date respondent's cause of action accrued until the delivery of the furniture to him by Mr. Curran, so that respondent's cause of action, if any, has been once completely barred; the delivery of the furniture, according to respondent's theory, constituting a revival of a once dead claim rather than the keeping alive of a claim never completely outlawed.

To support his contention that the delivery of the furniture was intended by Mr. Curran as a payment on account of a legal obligation, respondent produced as a witness on his behalf Mrs. Sarah Ross, whose testimony on this point was as follows:

'Q. Please state the substance of that conversation you had with him about this furniture, this conversation with Mr. Curran. A. We were sitting on the porch; it was about evening. We were talking about the sunset, and so forth. I was anxious to go out to the porch to see the sunset. He got started on this affair. He knew that I was very fond of his wife. He knew me for so many years, and everything, that he kind of wanted to reinstate himself, I think, in my estimation. He started to tell me what he was doing for the family as recompense for what they had done for his wife when he was gone. (After interruptions the witness continued.) Well, I spoke about his return and all, how surprised we

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