White v. Miley

• Decision Date: 07 April 1926
• Docket Number: 19666.
• Citation: 244 P. 986,138 Wash. 502
• Parties: WHITE v. MILEY et al.
• Court: Washington Supreme Court

244 P. 986

138 Wash. 502

WHITE v. MILEY et al.

No. 19666.

Supreme Court of Washington

April 7, 1926

Department 1.

Appeal from Superior Court, Snohomish County; Alston, Judge.

Action by R. W. White against W. E. Miley and others. Judgment for plaintiff after allowing offset pleaded by defendants in counterclaim. Defendants appeal, and plaintiff cross-appeals. Affirmed on both appeals.

See also, 241 P. 670.

W. P Bell and Coleman & Fogarty, all of Everett, for appellants.

Horan &amp Mulvihill, of Everett, for respondent.

HOLCOMB J.

An appeal and cross-appeal are involved herein, and the parties will be designated as plaintiff and defendants respectively.

The suit was brought to recover on three separate causes of action. The first cause of action was to recover for certain work under an alleged oral agreement in clearing and grubbing a right of way for a certain public highway in Clallam county. Plaintiff alleged as to that cause of action that on about July 7, 1922, he was clearing and grubbing such right of way under a written contract with defendants; that on about that date the parties by mutual agreement rescinded and abandoned the written contract, and made a new oral agreement respecting such clearing and grubbing, the oral agreement being as follows:

That plaintiff was to resume operations in the clearing and grubbing upon which he had been at work on the right of way and use his best judgment in clearing and grubbing the land, and the defendants would pay all bills incurred and contracted for labor and material on the work, and in the prosecution of the same, and in addition pay plaintiff $500 for moving his equipment to the work, and a bonus of $1,000; and that if the bills for labor and material incurred in the prosecution of such work were less than $350 per acre, then the defendants would pay plaintiff, in addition to the $500 before mentioned and the $1,000 bonus, the difference between the aggregate amount of bills for labor and materials incurred, and the sum of $350 per acre for the land so cleared and grubbed; and if the bills for labor and material equalled or exceeded $350 per acre, then plaintiff was to receive the $500 for moving the machinery, and the $1,000 for doing the work, and no more. That on September 8, 1922, plaintiff commenced to clear and grub the right of way under the oral agreement, using a donkey engine and other equipment therefor, and continued such work with such equipment until about December 11, 1922. That the land through which the right of way was located was swampy, and it was impossible to burn the débris in the right of way, and that thereupon plaintiff and defendants agreed to discontinue the work until the spring of 1923. That after such agreement was made defendants took charge of the work, gave a contract to other parties, and informed plaintiff that he should do no more work on the right of way under the oral agreement. That plaintiff cleared and grubbed under the oral contract approximately 13 acres of land of the reasonable value of $1,500, payment for which was by him demanded and refused by defendants.

The second cause of action alleged that plaintiff had made a contract with defendants for the use of a donkey engine in the construction of a bridge on the right of way, for which defendants agreed to pay the sum of $20 per day, and that the donkey engine was used for 13 days, making a total due of $260, no part of which was paid, although demanded.

In the third cause of action it was alleged that the plaintiff entered into an oral agreement with defendants to move 900 cubic yards of dirt at 45 cents per cubic yard. That acting under that agreement he moved 900 cubic yards of dirt. That the defendants paid $178.75 thereon, leaving the sum of $226.25 unpaid, which remained unpaid although demanded.

Plaintiff demanded recovery on each cause of action in the several amounts alleged. The allegations of the first cause of action were denied by defendants.

As to the second cause of action, the defendants admitted hiring the donkey engine, but alleged that the payment therefor was agreed to be the sum of $15 per day, and that the plaintiff has been overpaid.

As to the third cause of action, defendants denied that plaintiff had removed 900 cubic yards of dirt, or any more than 200 cubic yards, and admitted the payment of $178.75 thereon, as alleged by plaintiff.

For a second affirmative defense the defendants allege that an action had been brought in the superior court for Snohomish county between the same identical parties as plaintiff and defendants respectively, the same being designated as cause No. 21999 of that court, in which the defendants by way of counterclaim against plaintiff, among other things, alleged the making of the contract by the same parties for the clearing of the same land in Clallam county, the same being the contract sued upon in the first cause of action herein, wherein and whereby it was alleged that defendants had overpaid plaintiff in the sum of $7,360; that the affirmative defense in that action was put in issue, and tried to the court and determined. It is further alleged that the matters and things sued upon in this action alleged to be existing in favor of plaintiff, if existing, were existing at the time of the former suit in favor of plaintiff in that action, and could and should have been litigated in that action; and prayed for a dismissal of the present case and for judgment in favor of the defendants in this action in the sum of $406.37.

Plaintiff replied, denying the claim of $406.35, on information and belief, and alleged that the second affirmative defense of the defendants in this action was res judicata. The reply further admits that the matters and things sued upon in this action were existing at the time of the former action, but denies that the same could or should have been litigated in that cause, and further pleaded that the first affirmative defense and cross-complaint of the plaintiff in this action was res judicata by reason of the former action. Cause No. 21999 was tried to a jury and a verdict of $1,500 returned in favor of plaintiff therein, upon which judgment was entered by the court and subsequently paid and satisfied by these defendants. The claim for repairs on the donkey engine set up in the counterclaim in this action was not set up or pleaded in the former action.

In the former case this plaintiff as plaintiff therein sued to recover $2,469.90, the alleged value of the donkey engine and equipment alleged to have been converted by these defendants, who were also defendants in that case. In that action these defendants alleged that they and the plaintiff therein had a written contract for clearing and grubbing a right of way in Clallam county, and that by virtue thereof White was using a donkey engine and equipment in the work, and that defendants had from time to time expended money in the payment of wages and for material in the carrying out of the contract, in the sum of $7,363, over and above the contract price of the work; and also set out the written agreement under which the work was done, and that they had not converted the donkey engine, but simply used the same in the completion of the contract between the parties, alleging that the contract had been abandoned by plaintiff. Plaintiff replied in that action, denying the allegations of the answer, and further alleged that the written contract mentioned in the answer had been rescinded, and an oral contract entered into between them; that the work done by him was under the oral contract, and that the defendants therein had no authority to use the donkey engine.

Upon the issues as submitted in cause No. 21999, the jury manifestly found that the written contract set up by defendants therein had been rescinded and an oral contract entered into between the parties, under and by virtue of which plaintiff therein was entitled to recover the value of the personal property involved, which they found to be $1,500.

In this action the jury awarded a verdict against the defendants on all of the causes of action in the sum of $943.75, and by special verdict submitted to them by the court stated that they had allowed the defendants an offset against the amount of plaintiff's claim on account of the first cause of action in the sum of $300.

At the trial the evidence for plaintiff reduced the first cause to not to exceed $900, the second to not to exceed $140, the third something exceeding the $178.75 paid by defendants and admitted by plaintiff could be awarded under the evidence; as to all of which the court properly instructed the jury. The defendants moved for judgment n. o. v. on all three causes of action, and also for a new trial. Plaintiff moved for judgment n. o. v., disregarding the offset made by the jury in favor of the defendants. All these motions were denied, and judgment entered on the verdict. Defendants requested the court in writing to instruct the jury to find for them on the first cause of action, which the court refused to do.

The errors claimed by defendants all relate to the above refusal, and in denying the motions for judgment n. o. v. and for a new trial. Plaintiff's cross-appeal and assignment of error is based on the reception of evidence of defendants' counterclaim, in submitting the counterclaim to the jury, and in allowing the counterclaim in the judgment and not rendering a judgment in the full amount of $1,243.75.

The defendants, on their appeal, contend that plaintiff, by his two suits in he superior court for Snohomish county, split his cause of action, and that his present cause of action should be held to be res judicata by the final determination in the former suit. The chief question on the...