Warwick v. Hitchings

• Decision Date: 28 July 1908
• Citation: 50 Wash. 140,96 P. 960
• Parties: WARWICK v. HITCHINGS et al.
• Court: Washington Supreme Court

96 P. 960

50 Wash. 140

WARWICK v. HITCHINGS et al.

Supreme Court of Washington

July 28, 1908

Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Action by A. A. Warwick against George H. Hitchings and others. Judgment for plaintiff. Defendants appeal. Affirmed.

Wilson R. Gay and C. W. Hodgdon, for appellants.

W. H Abel and E. A. Philbrick, for respondent.

RUDKIN J.

This was an action to recover the balance due on the purchase price of certain real property conveyed by the plaintiff and his wife to the defendants. The complaint alleged that the agreed purchase price was $1,100, that $100 had been paid thereon, and that the defendants failed and refused to pay the balance due. The answer denied that the purchase price was $1,100, or any other or greater sum than $100, and averred that the purchase price had been fully paid. The case was tried before a jury, and from the judgment entered on a verdict in favor of the plaintiff this appeal is prosecuted.

Under the issues presented by the pleadings, the respondent offered proof tending to show the market value of the property conveyed at the date of the conveyance, and the ruling of the court in admitting this class of evidence is assigned as error. In McCowan v. Northeastern Siberian Co., 41 Wash. 675, 84 P. 614, the court said: 'It is held by this court, in common with many other courts, that, in controversies where a special agreement is alleged on one side and denied on the other, it is relevant to put in evidence any circumstance which tends to make the question at issue more or less probable; and this, not to change the contract, but as evidence of what it is.' See, also Dimmick v. Collins, 24 Wash. 78, 63 P. 1101, and cases cited. Under these decisions there was no error in the rulings complained of.

It appeared in the course of the trial that a subscription list had been circulated in the town of Moclips at or before the time the property was conveyed to the appellants, and that the citizens of that place had subscribed the sum of $1,000 to aid in the purchase of this property, or in the construction of a sawmill thereon by the appellants. The admission of evidence relating to this subscription list is assigned as error. The evidence was offered in the first instance for the purpose of showing the relationship existing between the three appellants, but the court afterwards ruled that that question was not material. If it appeared that the money thus subscribed was to be paid to the respondent on account of the purchase price of this land, such proof would be decisive against his present claim. If, on the other hand, the subscription was in aid of the appellants, we think it was a circumstance proper for the consideration of the jury, on the same principle that evidence relating to the value of the property was competent.

The admission of evidence tending to show the kind of a mill the appellants agreed to construct on the property is next assigned as error. The relevancy of such testimony is not apparent, but the same question was gone into fully on the cross-examination of one of the appellants, without objection, and we fail to see wherein the testimony could be at all prejudicial. The appellants offered to prove by one of their witnesses that one Hays had made a statement that the money raised by the subscription was to go to the respondent. This testimony was not offered for the purpose of impeachment, and was clearly hearsay, as it is not contended that the party who made the statement or admission had any connection with either of the parties to this action, beyond the fact that he circulated or assisted in the circulation of the subscription list.

The complaint alleged that the appellants were copartners, but the court ruled at the trial that this allegation was not material, and need not be proved as alleged. This ruling was correct. Where an allegation of partnership is material, it must be proved as alleged; but in this case it would seem utterly immaterial whether the appellants...