Tompkinson v. Muzzy

• Decision Date: 16 December 1891
• Citation: 28 P. 652,2 Wash. 616
• Parties: TOMPKINSON v. MUZZY.
• Court: Washington Supreme Court

28 P. 652

2 Wash. 616

TOMPKINSON v. MUZZY.

Supreme Court of Washington

December 16, 1891

On rehearing.

STILES, J.

With the main decision in this case we continue satisfied, for the reasons therein given. But in the petition for rehearing the appellant, Muzzy, earnestly endeavors to obtain a change in our holding in the matter of the $5,421.15, allowed for the land conveyed to Spokane College. As will be observed, we sustained the rule adopted by the superior court, viz., that the measure of recovery proper under the facts was the value of the land at the date of the conveyance to the college, and not at the date of the commencement of the action. The appellant, Muzzy, appealed on the whole case, and the appellee, Tompkinson, appealed from this part of the decree she claiming that at the latter date the property was greatly more valuable than at the former one. At the hearing the time of counsel for argument was greatly extended, but neither side reached this subject, but left it to the decision of the court on their briefs.

Our decision was against the appellee in this particular, and from the briefs of the appellant we obtained the impression that, if the main case were decided against him, he was satisfied with the judgment for the value of the college land. Upon this point the brief said: "We think if the court erred in that matter it erred against the appellant and not against the appellee." And again: "No reason can be conceived why the rule of damages in a case of this kind should be more onerous than in trespass and conversion, yet in those cases the rule is universal that the measure of damages is the value of the article at the time it was taken or converted, with legal interest from that date." Now, however, it is urged that there should have been no recovery at all against appellant for the college land, but that, inasmuch as Spokane College took the land as a gift, and was therefore not a purchaser for value it should have been made a party defendant, and the trust should have been impressed upon its land to the relief of Muzzy. If it were true that the conveyance to the college was without consideration, perhaps the position of the appellant would be sound. But let us see how the facts stand.

The complaint alleged that the appellant had conveyed certain land to the college, and that its value was $30,000, and the answer did not deny either of these allegations. The testimony was all taken, so that both sides rested, and the cause was set for argument June 16, 1890, without a word being said upon either side as to the college land. On December 30, 1890,...