Sutter v. Moore Inv. Co.

• Decision Date: 18 November 1902
• Citation: 70 P. 746,30 Wash. 333
• Court: Washington Supreme Court
• Parties: SUTTER v. MOORE INV. CO.

70 P. 746

30 Wash. 333

SUTTER v. MOORE INV. CO.

Supreme Court of Washington

November 18, 1902

Appeal from superior court, King county; Geo. Meade Emory, Judge.

Action by David Sutter against the Moore Investment Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Smith & Cole, for appellant.

Richard Osborn, for respondent.

DUNBAR J.

The respondent sued appellant on two causes of action, alleging in both that appellant owned, controlled, and managed the Lincoln building in Seattle, and operated and conducted the same as an apartment house; that, for the accommodation of the tenants of the Lincoln, a restaurant, known as the 'Lincoln Café,' was conducted by one Tremaine; that on March 4, 1901 Tremaine owed the respondent for meats $411.23, and was refused further credit unless such indebtedness was paid that thereupon appellant, respondent, and Tremaine entered into a novation, whereby appellant, for the purpose of keeping the said restaurant running, and in consideration of the arrangement made between it and Tremaine for the payment to it of the receipts of the restaurant agreed to pay said bill, and respondent accepted appellant and discharged said Tremaine, and that thereafter, on March 8, 1901, appellant paid respondent $212.23 of said bill, agreeing to pay the balance of $200 within one week; and that the same was never paid. For a second cause of action it is alleged that appellant directed respondent to furnish whatever meat should be required to supply said restaurant, and agreed that upon presentation of weekly statements of the amount so furnished it would pay the same; that, relying upon such agreement, the respondent furnished the restaurant with meats to the value of $562.54, and rendered weekly statements, which appellant promised to pay, but it paid no part thereof except $50, leaving a balance due of $512.54. The total amount sued for is $712.54. The appellant interposed a general denial to the first and second causes of action, excepting it admitted that the Lincoln was an apartment house, and that it paid the respondent $211.23 on March 8, 1901, and also the sum of $50, and denied that any sum was owing from it to the respondent. After respondent's case was presented, appellant made a motion for a nonsuit, which was denied. A verdict was rendered by the jury for the amount prayed for by the respondent, and a new trial on the ground of insufficiency of the evidence to justify the verdict and for errors of law occurring at the trial was denied.

The contention that the court erred in overruling the objections to the testimony of Tremaine relative to a conversation between himself and Moore is untenable. Tremaine was one of the parties to the novation, and the testimony was simply a link in showing the understanding arrived at. It is claimed by the appellant that a novation was not established by the testimony. The...