Stusser v. Gottstein

• Decision Date: 28 September 1936
• Docket Number: 26115.
• Parties: STUSSER v. GOTTSTEIN.
• Court: Washington Supreme Court

61 P.2d 149

187 Wash. 660

STUSSER v. GOTTSTEIN.

No. 26115.

Supreme Court of Washington

September 28, 1936

Department 2.

Appeal from Superior Court, King County; Arthur McGuire, Judge.

Action by A. S. Stusser against Joseph Gottstein. From a judgment dismissing the action, plaintiff appeals.

Affirmed.

Eimon L. Wienir, of Seattle, for appellant.

Bausman Oldham, Cohen & Jarvis and Perry R. Gershon, all of Seattle for respondent.

MAIN Justice.

This action is based upon a written instrument, and is for a money judgment. The defendant's answer was a general denial. The cause went to trial Before the court and a jury, and resulted in a verdict in favor of the plaintiff. Thereafter an order was entered granting a new trial, from which there was no appeal. The cause was again tried, and upon that trial the jury returned a verdict in favor of the defendant, from which the plaintiff appealed. Stusser v. Gottstein, 178 Wash. 360, 35 P.2d 5. Upon that appeal, the judgment was reversed and a new trial ordered. After the case was remanded to the superior court, the defendant amended his answer, and pleaded affirmatively an equitable defense. Upon motion, the trial court struck the demand for a jury trial, and the third trial was to the court without a jury. No formal findings of fact were made, but the trial court, in a memorandum opinion, expressed the view that the weight of the testimony was against the plaintiff's right to recover. From the judgment entered dismissing the action, the plaintiff appealed.

The facts are fully stated in the opinion upon the former appeal, and will be here only briefly summarized. The parties to this litigation had previous business relations with each other, and, while so associated, entered into a written agreement which is the basis of this action and which reads as follows:

'September 6, 1928.

'In consideration of A. S. Stusser purchasing jointly with myself a certain assignment of lease dated August 20, 1928, from the Arjo Investment Company, which is recorded on February 19, 1925, Volume 48 Book of Leases, page 472, I agree to refund A. S. Stusser any amounts paid by him on said lease on or Before June 30th upon five days notice.

'Joseph Gottstein.'

Upon the former appeal to this court, the principal question was whether this agreement, on its face, showed a loan from Stusser to Gottstein or a joint venture, and also whether the instrument was ambiguous on its face as to the character of the transaction. In accordance with Gottstein's contention, the trial court had instructed the jury that the instrument was one of joint venture. Upon the appeal, this was reversed, the court holding that the agreement was ambiguous, and that the oral testimony was permissible to determine the intention of the parties. In addition to this holding, there was the further conclusion that, if it should be found that the agreement was one of joint venture, then it was necessary for Stusser, at the time he gave notice of his demand for a refund, to tender a conveyance of his interest in the leasehold. In the course of the opinion on this question, it was said: 'Considering, then, the agreement in the light of both its express and its necessarily implied provisions, we have a situation where, upon the giving of the required notice by appellant, there was a duty on the part of the respondent to purchase appellant's interest in the lease, and a corresponding duty on the part of appellant to convey his joint interest therein. These obligations were dependent and concurrent, and as such were to be simultaneously performed, in the absence of a contrary understanding or agreement. [Citing authorities.]'

The principal issue on the trial, after the cause was remanded to the superior court, was whether the agreement evidenced a loan by Stusser to Gottstein or a joint venture. This question was important because, if the court reached the conclusion from the instrument and the other evidence that it was a joint venture, then a tender of a conveyance was necessary, and this had at no time been made. The evidence of the parties upon the question of the intention was directly in dispute. The trial court, as indicated by its memorandum opinion, was of the view that it was a joint venture. The complaint, as originally drawn, which was at no time amended, from its language gives no indication of an assertion of the theory that there was a loan. In the complaint, it is said that the parties 'did jointly purchase that certain leasehold fully described hereinabove.' In another paragraph, it was said that Stusser notified Gottstein 'that he was dissatisfied with the purchase of said leasehold.'

There was evidence of the conduct of Stusser subsequent to the time that he gave notice of his election to demand a refund, which was inconsistent with his theory that it was a loan. Without reviewing the evidence, which would serve...