Tibbals v. Iffland

• Decision Date: 03 January 1895
• Citation: Tibbals v. Iffland, 10 Wash. 451, 39 P. 102 (Wash. 1895)
• Parties: TIBBALS v. IFFLAND.[1]
• Court: Washington Supreme Court

39 P. 102

10 Wash. 451

TIBBALS v. IFFLAND.^[1]

Supreme Court of Washington

January 3, 1895

Appeal from superior court, Jefferson county.

Action by H. L. Tibbals, Sr., against John Iffland. From a judgment for defendant, plaintiff appeals. Affirmed.

Smith & Felger and Trumbull & Trumbull, for appellant.

Carroll & Rohde and R. W. Jennings, for respondent.

ANDERS J.

On June 15, 1889, the appellant, by an instrument in writing duly executed, leased to one Herman Trapeur a certain storeroom in the city of Port Townsend for the period of five years from the 1st day of March, 1890, for the sum of $100 per month payable in advance on the 1st day of each and every month which sum the said Trapeur agreed to pay in accordance with the terms of said lease. On April 6, 1890, the said lessee assigned all his right, title, and interest in and to said lease to one Whittlesey, who on October 22, 1891, assigned the same to the respondent, Iffland. The respondent, about the 1st day of November, 1891, went into possession of the premises, and paid the rent to appellant, according to the provisions of the lease, for three months thereafter, and then failed and refused to make further payments. This action (originally two actions, which were consolidated and tried as one) was instituted to recover the rent alleged to be due for six successive months, beginning with March, 1892. The respondent set up as defenses to the action: (1) That on the 15th day of January, 1892, he, by an instrument of writing duly acknowledged, assigned, for value all his right, title, and interest in and to the lease alleged in the complaint, and the premises therein described to one John Barnett, and surrendered the possession of said premises to said Barnett, and put him in possession of the same; and (2) an adjudication in his favor in a justice court in an action for the rent for the month of February, 1892. Most, if not all, of the testimony offered as to this latter defense was rejected by the court, and the case went to the jury upon the questions raised by the first affirmative defense pleaded; and there was a verdict and judgment for the defendant.

It is alleged that the court erred in admitting in evidence certain testimony over the objection of the appellant, in rejecting certain other testimony offered by appellant, and in giving certain instructions to the jury. The court permitted the respondent, over appellant's objection, to answer the interrogatory, "What, if anything, did you do with that lease, and the premises described in that lease," It is admitted by the pleadings that the respondent acquired whatever interest he had in the premises by virtue of a written assignment of the original lease, and this question was preliminary, merely, to the proof of assignment, subsequently submitted, and was therefore admissible. After the witness Rohde had testified as to the assignment of a lease and its contents, over the objection of appellant, the court overruled an objection by appellant to the question, "What lease was it, Mr. Rohde, that this assignment purported to assign?" The evident object of this question was to show that the instrument mentioned by the witness was the assignment referred to in respondent's answer, and, unless a proper foundation for the introduction of secondary evidence as to the contents of the alleged assignment had not been laid,-a question to be considered hereafter,-it was not error to permit the interrogatory to be propounded and answered.

It is also insisted that the court erred in sustaining the respondent's objection, on the ground of immateriality, to the question asked respondent on cross-examination, "How did you come to get this lease? What object had you in getting it?" We perceive no merit in this objection. It was conceded that the lease was assigned to the respondent,-in fact, it was so alleged in the complaint,-and it would seem to be altogether immaterial what his object or motive was in acquiring it. After one Rohde, an attorney, and a witness for the respondent, had testified that he wrote the assignment from the respondent to Barnett, he was asked the question, "Wasn't this assignment, Mr. Rohde, a scheme on your part for to get Mr. Iffland rid of the lease?" The court sustained an objection to the question, as immaterial, and the plaintiff excepted. It is obvious, from the very nature of the transaction itself, that the object of making an assignment was to get rid of the lease. And while we think the question propounded might properly have been answered under the latitude permissible in cross-examination, still we are unable to perceive wherein the appellant was materially prejudiced by the ruling of the court in that regard. The respondent had a perfect right to "get rid of the lease" by assigning it, bona fide, even though the "scheme" originated with the witness. If there was any error at all committed, it is so inconsequential that a reversal cannot justly be predicated upon it.

The assignment in question was not produced at the trial, and parol testimony was introduced to show how it was executed and also its contents. The appellant objected to the giving of such testimony on the ground that sufficient diligence to procure the assignment had not been shown, and that its nonproduction was not sufficiently accounted for. There was testimony adduced on the part of the respondent, and which was not contradicted, to the effect that the assignment was in writing, and for a valuable consideration, and that it was delivered to Barnett, the assignee therein mentioned. And the respondent himself testified that he delivered the possession of the premises described in the lease to said Barnett, who soon after left the city of Port Townsend; that he had searched the hotels and boarding houses there, to find him, and get the assignment, and had addressed...