Springer v. Superior Court, Spokane County

• Decision Date: 06 May 1940
• Docket Number: 27800.
• Citation: 4 Wn.2d 53,102 P.2d 266
• Parties: SPRINGER v. SUPERIOR COURT, SPOKANE COUNTY.
• Court: Washington Supreme Court

102 P.2d 266

4 Wn.2d 53

SPRINGER v. SUPERIOR COURT, SPOKANE COUNTY.

No. 27800.

Supreme Court of Washington, En Banc.

May 6, 1940

Original proceeding by Irma R. Springer for a writ of mandate directing a Judge of the Superior Court of the State of Washington, County of Spokane, to enter judgment in accordance with the prayer of her complaint as a plaintiff in an action pending in that court.

Application for writ denied.

MILLARD J., dissenting.

A. J Hutton and R. E. Lowe, both of Spokane, for relator.

E. O Connor, of Spokane, for respondent.

ROBINSON Justice.

In this matter, the relator, a plaintiff in an action pending in the superior court of Spokane county, prays for a writ of mandate directing a judge of that court to enter judgment in accordance with the prayer of her complaint. The writ is sought upon the ground that, after issue had been joined by complaint, answer, and reply, the defendants filed a motion for judgment on the pleadings, which the court overruled. A few days after the entry of the overruling order, the plaintiff moved for judgment, which the trial court refused, and still refuses, to enter.

Plaintiff as relator in this proceeding, contends that the trial judge had no discretion in the matter, but that it was, and is, his ministerial duty to enter judgment in accordance with the prayer of her complaint, and invokes a long line of decisions of this court, and, in particular, Yakima Hardware Co. v. Strickler, 156 Wash. 369, 286 P. 853; State ex rel. Dept. of Public Works v. Skagit River Navigation & Trading Co., 181 Wash. 642, 45 P.2d 27; State v. Vinther, 183 Wash. 350, 48 P.2d 915. For citation and discussion of our earlier decisions on this subject, see the dissenting opinion on the rehearing of the Vinther case, 186 Wash. 691, 58 P.2d 357.

It is necessary to an understanding of the instant matter to review the pleadings in the action in which we are asked to command the superior court to enter judgment for the plaintiff. The complaint alleges, in substance, that, in December, 1937, Alexander E. Springer was killed by an automobile driven by Carl L. Bouge, sometimes known as Carl L. Boge. Irma R. Springer, the decedent's widow, brought a wrongful death action against Carl L. Bouge and the Boge Brothers Bakery. Einar A. Boge, claiming to be the owner of the bakery, conducted negotiations for a settlement of that action on behalf of the defendants therein. By the terms of the settlement which grew out of the negotiations, Carl L. Bouge and Einar A. Boge agreed to (a) pay the plaintiff $1,000; (b) give a note for $2,500, secured by a mortgage on certain real property; (c) repair the Springer automobile; and finally,--and this is the matter with which the present action is concerned,--(d): 'That the defendant herein will arange with his brother Einar, for the employment of the plaintiff herein in the Boge Bakery, on Sheridan Street, Spokane, Washington, at the union scale of wages during such time as her services are satisfactory.'

It was for an alleged breach of (d) that the pending action was brought. It was alleged that plaintiff was damaged by the breach in the sum of $5,000, and judgment prayed for for that amount.

The answer, among other things, alleged that plaintiff's services were unsatisfactory, setting up that she was quarrelsome, irritable, insubordinate, etc., and that she voluntarily quit the employment. All such matters were denied by reply.

Shortly after the service and filing of the reply, the defendants filed a motion, which we set out in full:

'Motion for Judgment on the Pleadings and to Dismiss.

'Comes now the defendants and move the Court for an order as follows, to-wit:

'I. To strike from the trial docket the setting of the said case for the reason that there is no issue of fact to be submitted to the jury.

'II. For judgment upon the pleadings and dismissing said action for the reason that the said complaint does not state any facts sufficient to constitute a cause of action, or entitle the plaintiff to any relief herein, upon the grounds that the said plaintiff is suing upon alleged oral contract for the employment of plaintiff at the union scale of wages during such time as her services are satisfactory, the same being a purported oral agreement unenforceable for want of any consideration moving to the defendants to support it, other than rendition of services by the plaintiff.

'III. That said contract is not for any definite period, and that said contracts being for an indefinite period and may be terminated by either plaintiff or defendants at any time, and that no action can be sustained in such case for a wrongful discharge, if any, or plaintiff ceasing employment.

'IV. The complaint alleges that the plaintiff was discharged, while the answer of the defendants alleges that the plaintiff quit her employment. In either case the rule of law in the same, and the so-called contract was terminated by the acts of either party or both.'

Some time after this motion was heard, the trial judge rendered a memorandum decision. After stating the issues, much as we have done, he went on to say:

'In their motion for judgment upon the pleadings the defendants emphasize the fact that no benefit or consideration passed from the plaintiff to the defendants Einar A. Bouge and Kersten Bouge, who were under no liability to the plaintiff as administratrix but were merely volunteers in the settlement, and that the arrangement to employ the plaintiff, which was a part of the agreement of settlement, was without force or effect as to them; in other words, that the contract was wholly without consideration so far as they were concerned. But this contention overlooks the principle of the law of contract to the effect that a consideration may be one of value or benefit to the promissor, or of loss or disadvantage to the promissee.

'It seems to be clear from the cases cited by the brief submitted on behalf of the plaintiff that the present case in principle falls within the rule quoted from 39 C.J. 41, and 18 R.C.L. 510, which is supported by the decisions in Pennsylvania Co. v. Dolan, 32 N.E. 802, 51 Am.St.Rep. 289; Yellow Poplar Lumber Co. v. Rule, 106 Ky. 455, 50 S.W. 685, Dysart v. Dalkins Log & Mill Co., 222 Ky. 415, 300 S.W. 906, F. S. Royster Guano Co. v. Hall, 4 Cir., 68 F.2d 533; Fisher v. John L. Roper Lumber Co., 183 N.C. 485, 111 S.E. 857 35 A.L.R. 1417, and other authorities.

'It may be true that the defendants Einar A. Bouge and wife derived no material benefit from the release of the claim of the plaintiff against Carl L. Bouge and his wife, although there can be no question that they had a very deep interest in the reduction of the charge pending against Carl L. Bouge so that he suffered only a jail sentence instead of as for a felony; but, on the other hand, the plaintiff surrendered her claim for damages in the sum of $10,000 in consideration not only of the payment of the sum of $3500, but also of the promise on the part of Einar A. Bouge and his wife to give her employment so long as her services should prove satisfactory. The question as to whether her services proved satisfactory was not to be determined solely by said defendants, and she could not be discharged arbitrarily or without cause. The circumstances under which the connection of the plaintiff with the business of the defendants was severed are in very sharp controversy and of necessity a trial would be necessary in order to determine the right of the matter.

'It is believed that the motion for judgment upon the pleadings is not well taken and it will therefore be denied.'

On June 17, 1939, the court entered an order the closing sentence of which reads as follows: 'It is by the Court ordered that said Motion for Judgment on the Pleadings and to Dismiss be, and the same is hereby denied.'

The relator's position is that upon the entry of this order, she immediately became entitled to judgment for $5,000. It is contended that the right to such judgment follows from those decisions concerning motions for judgment on the pleadings which we have already cited, and it is further contended that, once having entered the order, the court has no right to recede from it; citing State ex rel. Stone v. Superior Court, 97 Wash. 172, 166 P. 69; and State ex rel. Western Stevedore Co. v. Jones, 145 Wash. 258, 259 P. 718.

The term or phrase 'Motion for Judgment on the Pleadings' has more than one meaning. From the point of view of our statutory law (Rem.Rev.Stat. § 278), it means a motion made by a defendant for judgment when the plaintiff has failed to deny a reply to a counterclaim or defense. However, this court has, in common with many others, recognized the practice of making such a motion to search the entire record. In making such a motion, the moving party invites judgment against himself, unless he prevails. As is said in Yakima Hardware Co. v. Strickler, 156 Wash. 369, 286 P. 853, 855, the rule is: 'By making a motion for judgment in his favor upon the pleadings, the moving party admits not only the truth of the allegations of his opponent, but also admits the untruth of such of his own allegations as stand denied.'

It is widely recognized in the case law of this country that this rule has...