Sanders v. General Petroleum Corp. of California

• Decision Date: 06 January 1933
• Docket Number: 24013.
• Citation: 171 Wash. 250,17 P.2d 890
• Parties: SANDERS et al. v. GENERAL PETROLEUM CORPORATION OF CALIFORNIA.
• Court: Washington Supreme Court

17 P.2d 890

171 Wash. 250

SANDERS et al. v. GENERAL PETROLEUM CORPORATION OF CALIFORNIA.

No. 24013.

Supreme Court of Washington

January 6, 1933

Department 1.

Appeal from Superior Court, Spokane County; Charles H. Leavy, Judge.

One action by Guy Sanders and Mary E. Sanders, for whom, after her death, William A. Sanders and another, as executors of her estate, were substituted as parties plaintiff, against the General Petroleum Corporation of California, which filed a cross-complaint, was consolidated for the purpose of trial with an action by the named corporation against the original plaintiffs in the first action. From an adverse part of the judgment, the named corporation appeals. Motion to dismiss the appeal.

Motion denied, judgment affirmed in part and reversed in part, and case remanded, with instructions.

Randall & Danskin, of Spokane, and Bogle, Bogle &amp Gates, of Seattle, for appellant.

Gleeson & Gleeson, of Spokane, for respondents.

HOLCOMB J.

Two causes of action were consolidated for the purpose of trial by the lower court and dealt with therein as though but a single action. One action was brought by respondent Guy Sanders and the estate of Mary E. Sanders against appellant corporation; the other was brought by appellant corporation as plaintiff against the same parties defendants in an unlawful detainer action for the purpose of terminating a sublease made by appellant corporation to Guy Sanders and Mary E. Sanders.

In their second amended complaint Guy Sanders and Mary E Sanders, his mother, alleged that in the early part of 1929 appellant fraudulently induced them to take a lease for a term beginning January 15, 1929, and ending January 14, 1939 on premises described therein on which was an oil station and equipment, and fraudulently secured from them a promissory note for $1,050 and two notes for $4,000 each, all in favor of appellant; that the lease further provided, in part: 'If the lessee shall have fully and faithfully performed each and every obligation on his part to be performed hereunder, and if said note is paid on demand, the sum of $1050 so paid shall be applied upon the last 6 months rental of this lease but otherwise said note and/or said sum of $1050 or any unapplied portion thereof shall belong to the lessor as part of the consideration for this lease.'

It was further alleged that, as a part of the fraudulent scheme, appellant sold plaintiffs the equipment at the oil station on the leased premises for $4,000, and the bill of sale was made out in the name of Harry O'Connor as vendor to cover up the fraudulent scheme. It is also alleged that, because of the fraudulent representations of appellant, and because it failed to keep an agency agreement with respondents to sell appellant's products at that station, respondents had been cheated and defrauded. The prayer was the contracts, lease, and agreements between respondents and appellant be set aside, respondents' notes returned to them, and for general relief.

Mary E. Sanders died just Before the second amended complaint was served, and her executors Wm. A. Sanders and Howard W. Sanders were substituted as parties plaintiff in her stead.

Appellant answered the second amended complaint, admitting that Guy and Mary E. Sanders delivered to it a note for $1,050 and a note for $4,000, and also that they had leased from appellant real estate described in the complaint, which lease contained the quoted provisions as to the $1,050 note. It denied all fraud and misrepresentation, as alleged.

As a cross-complaint, in its first cause of action, appellant alleged the death of Mrs. Sanders, the appointment of her executors, that they were made parties in her stead, and that Mary E. Sanders and Guy Sanders on March 15, 1929, delivered to appellant a note for $4,000 payable in installments; that appellant served a claim for the balance of the note of $3,780.70 and interest on the executors of Mary E. Sanders on March 17, 1930, who rejected the claim on August 24, 1931; that $400 was a reasonable attorney's fee.

As a second cause of action in its cross-complaint, appellant alleged the death of Mary E. Sanders, appointment of executors, after which they were made parties, and that on about February 15, 1929, Mary E. Sanders and Guy Sanders delivered to appellant a note for $1,050 payable on demand; that it served a claim for the amount of that note and interest on the executors who rejected the claim August 24, 1931; that $100 was a reasonable attorney's fee.

The third cause of action set up by cross-complaint was for the amount due on a merchandise account of $328.73.

In their reply respondents denied substantially each of the affirmative causes of action and cross-complaint alleged by appellant which were inconsistent with the matters and things alleged in their second amended complaint. They further averred that in September, 1931, appellant commenced an action in King county against them, and by so doing abandoned all things set forth in its three affirmative defenses.

The trial court, having been given to understand that one judgment should be entered in all the causes of action, at the conclusion of the trial without a jury, it being tried as an equity action, found that appellant had not been guilty of any fraud on respondents, and that respondents were not entitled to recover anything on their causes of action. It further found that there was a failure of consideration for the two notes of $4,000 and $1,050, denied appellant recovery upon those two causes of action, and gave it judgment on its third cause of action against Guy Sanders for the merchandise account, and further found that the action in King county should be dismissed.

From that part of the judgment denying recovery to appellant on the promissory notes, it appealed.

A motion by respondents to dismiss the appeal on the ground and for the reason that the action was tried as one in equity, consolidated with an unlawful detainer case in which appellant was successful, cannot be appealed from as was done by appellant.

There is no merit in this motion. Appellant appealed from the only part of the judgment which by stipulation was made one judgment in two or more actions on which it failed; that is, the adverse judgment as to it upon which it has an undoubted right to appeal.

The trial court made thirty-four lengthy findings of fact and five brief conclusions of law, with some of which we are unable to agree.

The entire record in this case, including the correspondence and all documentary evidence and the testimony of the principal parties and witnesses largely from the statement of facts itself has been attentively examined.

The principal actor in this controversy on the part of respondents was Guy Sanders. He was forty-five years old, and had lived in and about Spokane for about fifteen years. He had been a salesman, and for four or five years preceding had been engaged in selling automobiles accessories, equipment and parts in his own place. One Harry O'Connor had been the owner of a gasoline station business, fixtures and equipment, in Spokane upon a month to month tenancy on lands owned by Ray Barton and wife. That station handled several kinds of oil and gasoline, and had been doing a large and profitable business. In the latter part of 1928 O'Connor desired to sell his station so that he could go to California. There is a conflict in the testimony as to whether the local manager of appellant first interested Guy Sanders in the station owned by O'Connor, Sanders saying that the manager did, but O'Connor saying that Sanders approached him, himself. At any rate he was interested in acquiring the service station. Appellant was also interested in having a station which would handle its gasoline and other products exclusively; that is, as the...