Strong v. Eldridge

• Decision Date: 21 April 1894
• Citation: 36 P. 696,8 Wash. 595
• Court: Washington Supreme Court
• Parties: STRONG ET AL. v. ELDRIDGE ET AL.

36 P. 696

8 Wash. 595

STRONG ET AL. v. ELDRIDGE ET AL.

Supreme Court of Washington

April 21, 1894

Appeal from superior court, Whatcom county; John R. Winn, Judge.

Action by H. A. Strong and E. C. Warner against E. Eldridge and Erastus Bartlett on a subscription made to secure the location of a foundry. From a judgment for defendants plaintiffs appeal. Reversed.

Hoyt J., dissenting.

Kerr & McCord, for appellants.

Dorr Hadley & Hadley, for respondents.

ANDERS J.

This action was instituted to enforce the payment of an alleged subscription made for the purpose of securing the location of a certain foundry and machine shops at the city of Fairhaven in this state. The plaintiffs allege in their complaint: That on or about the 16th day of September, 1890, they were the owners of and operating a foundry and machine shops in the city of Port Townsend. That, for the purpose of inducing them to remove their foundry and shops to Fairhaven, the sum of $5,000 was offered to them by the citizens and property owners of Fairhaven and vicinity, to be paid upon the location of said foundry and machine shops in Fairhaven, when the same should be put into successful operation, equipped and furnished with all the requisite tools, implements, machinery, etc. That plaintiffs agreed with said citizens and property holders that they would locate their foundry and shops upon such condition, and thus accepted the offer and proposition of the said property holders. That the agreement to locate said foundry and machine shops at Fairhaven upon the terms and conditions above mentioned, and not otherwise, was made known to defendants on or about September 16, 1890, at the city of Sehome; and that on said date the defendants were the owners of large quantities of real estate in the city of Fairhaven and vicinity, and believing, in common with other subscribers and property holders, that the location of said foundry and shops would materially enhance the value of their property, and being largely interested in the location of said foundry and machine shops, and with such knowledge, and with the desire to enhance the value of their property, they executed and delivered to the plaintiffs a certain agreement, of which the following is a copy: "Sehome, Washington, _____, 189___. I agree to subscribe $1,500 towards getting the foundry at Fairhaven. E. Eldridge, for Eldridge & Bartlett." That this agreement was executed by Eldridge for himself and Bartlett, whose agent he was, and was intended by the defendants to be received, and the same was received, by the plaintiffs, and was in fact their actual completed subscription of the sum of $1,500 to plaintiffs' enterprise, and made to appellants for the purpose of inducing them to erect their foundry and shops at Fairhaven; and the said defendants then and there delivered the said agreement or paper writing to plaintiffs, as their completed subscription to plaintiffs' enterprise, and for their use and benefit. That said agreement was, after its delivery, put down among other subscriptions delivered to plaintiffs for the same purpose, and that upon the faith of said subscriptions and agreements, this one among them, the said foundry and shops were to be located and erected at Fairhaven, and not elsewhere. That subsequently, and before this suit was instituted, and before a demand was made for the payment of said subscriptions, the plaintiffs, the requisite amount having been subscribed, removed said foundry and shops, and put them into successful operation, and fully carried out and performed all of their promises to said divers persons subscribing, and to said defendants, and have ever since continued to operate, and are now operating, the same, as they represented to the defendants they would do when this subscription was made. And that it was solely upon the faith of said subscriptions, and this one of the defendants in particular, that the said foundry and machine shops were located at Fairhaven, and not elsewhere. The plaintiffs further allege that in removing the said shops from Port Townsend, and locating the same at Fairhaven, and in procuring machinery and necessary equipments, they incurred debts, liabilities, and obligations upon the faith of such subscriptions, and this one in particular, which they would not have incurred had they not relied upon said subscription; that they completed said shops without any notice, knowledge, or any reason to believe that the defendants intended to revoke said subscription; and that they have demanded the payment of said sum from said defendants since the completion of said work, and before the commencement of this action, but that the defendants have not paid the same, nor any part thereof. To this complaint the defendants interposed a demurrer, upon the ground that it failed to state facts sufficient to constitute a cause of action, which demurrer was sustained by the court, and defendants appealed.

It is disclosed by the record in this case that, subsequent to the rendition of the judgment appealed from, one of the defendants, Edward Eldridge, died, and Hugh Eldridge administrator of said decedent's estate, was, upon an ex parte application to the court by plaintiffs, substituted as a party to this action. But it does not appear that the claim upon which this action is founded has ever been presented to said administrator or rejected by him, and for that reason it is insisted, on behalf of the respondents, that this court has no jurisdiction to determine this appeal. It is provided by section 986, Code Proc., that "no holder of any claim against an estate shall maintain an action thereon unless the claim shall have been first presented to the executor or administrator." It is contended by the respondents that this section of the statute and sections 981 and 984, taken together, conclusively show that no action can be maintained against the representative of a deceased person until the claim has first been presented to the executor or administrator, and by him rejected; and that is true, because it is explicitly so stated. But, in our opinion, these sections only refer to cases where an executor or administrator is in existence at the time the action is commenced, for otherwise it would be impossible to first present a claim against the estate in the manner therein specified. There is another section of the Code, however (988), which provides a method of...