Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση
[ocr errors]

time of the levy, and, if exemptions could be to. Exemption statutes should receive a libclaimed under such circumstances, they could eral construction, and the aim of courts much better be claimed out of property sit- should be to see that those entitled to the uated as was that in the case at bar. The benefits thereof receive the same. To hold partnership which had owned this property that one against whom an officer has an exewas no longer doing business; and such con- cution is entitled to have a certain amount of ditions had been produced by the action of property, of which he has the entire title, exthe partners as to work a dissolution of the empted therefrom, and at the same time to partnership. All of the partnership debts hold that he could have no exemptions out had been paid, and the property was in the of such property if he was not the sole owner, possession of the individual partner who is to do violence to the evident intention of claimed the exemptions. Under these cir- the statute. The different text writers upon cumstances, the reasoning of the courts which the subject, though most of them have fallen have held against such exemptions has no into the error of grouping cases of judgments force. It is true the partnership affairs had against a partnership with those against the not been adjusted, and for that reason the individual members thereof, have come to the interest of each of the partners was to a cer- conclusion that, upon principle, exemptions tain extent uncertain; but there is no reason should be allowed to the individual partner why the partner in whose possession the when the levy is under a judgment against goods were found should not have been al- | him; and those of such writers who have lowed to claim them as exempt, for the rea- carefully discriminated between cases of this son that some other person might have an kind and those in which the judgments were interest therein, certain or uncertain. If against the partnership have arrived at the such partner had an interest in the property conclusion that such doctrine is sustained by which could be levied upon under an execu- authority. The others seem to concede that tion against him alone, he had such an in- | the weight of authority is the other way, but terest as should entitle him to his exemptions we are not satisfied that such concession was out of it. The officer found him in posses- the necessary result of the cases when criticsion of the property. He levied upon it be- ally examined. Mr. Thompson, in his work cause of the interest which he had or was on Homesteads and Exemptions, discusses supposed to have therein. Having done so, this subject with ability, and, after citing the he could not rightfully refuse to set aside ex- cases upon each side of the question, sums emptions therefrom because of the fact that up his conclusions, in section 216, by the some other person had or might have an in- statement that the courts which have held terest in the property. The great weight of that exemptions could not be had out of partauthority is in favor of the proposition that nership property when levied upon under an exemptions may be allowed out of property execution against the individual partner have held with another as tenant in common, and done so in the face of the statutes, for the the same course of reasoning which estab- reason that the rule announced by them is lishes this proposition will sustain the allow- more convenient of execution than would be ance of exemptions out of partnership prop- one which allowed such exemptions. The erty when levied upon under an execution respondents cite the case of Charleson v. MCagainst an individual partner. But it is not Graw, 3 Wash. T. 314, 17 Pac. 883, to susnecessary in this case to resort to such a tain their contention; but an examination of course of reasoning, since the facts show that that case will show that it is not in point, urthe relation of the appellant to the property der the facts in this. In the opinion in that was substantially that of a tenant in common. case the learned judge who wrote it supposes

The cases which have held that partnership a case similar to the one at bar, and says property could not be levied upon have found- that in such a case exemptions could be aled their reasoning largely upon the incon- lowed. Hence, so far as it is in point, it supvenience and uncertainty which would arise ports the rule for which appellant contends, if such exemptions were allowed. Such and which, under the circumstances of this courts say that the interest in the property case, we are compelled to sustain. The judg. is uncertain; that the partner who seeks his ment will be reversed, and the cause remandexemptions therefrom does not own it; and ed for a new trial. that, for that reason, it cannot be set aside as his property. A sufficient answer to this SCOTT, DUNBAR, ANDERS, and GORcourse of reasoning, when the execution is DON, JJ., concur. against one of the partners, is found in the fact that, so far as exemptions are concerned, it is of no concern to the officer whether or

(11 Wash. 360) not the entire title to the property levied upon

HAYS et al. Y. DENNIS et al. is vested in the judgment debtor. For the (Supreme Court of Washington. March 7, purpose of determining the amount which is

1895.) exempt, it must be assumed that he owns the NOTICE OF APPEAL-COMPLAINT-EXHIBITS. property; but the facts of such assumption

1. A notice of appeal given after the anand of the setting aside of the property to

nouncement by the court of the terms of the

judgment, but before it was signed or entered, him will have no effect upon the title there- is suflicient.

2. Where references in the body of a com- of the complaint. Information as to their plaint to exhibits attached thereto contain in

general nature was given in the body of the formation as to their general nature sufficient to put defendant on inquiry as to the same, the

complaint, and the means given to obtain the exhibits become a part of the complaint.

fullest knowledge by easy reference. Hence Appeal from superior court, King county;

the complaint fully advised the defendants of J. W. Langley, Judge.

the facts relied upon by plaintiffs; and, this Action by W. F. Hays and another against

being its effect, it was good, when attacked J. H. Dennis and others to foreclose a chat

by general demurrer. tel mortgage. A demurrer to the complaint

As to the interest of the mortgagor in the was sustained, and plaintiffs appeal.

Re- | property, it is only necessary to say that, upversed.

on substantially the same facts in regard

thereto as were shown by the complaint in William E. Humphrey, for appellants.

this action, his interest therein was determinSteele & Gephart, for respondent Wales.

ed by this court in the case of Dennis v. Kass Frank P. Lewis, for respondent Peterson.

& Co. (just decided) 39 Pac. 636. It will HOYT, C. J. Respondents move to dismiss

therefore not be necessary for us to enter in

to a discussiou of that question. From what this appeal, for the reason that it was taken before the judgment had been made, signed,

was therein said, it will be seen that, in the and entered. That it was taken after the opinion of this court, the interest of the mort. announcement by the court of the terms of

gagor was substantially that of a tenant in

common. Hence, under well-settled rules, it the judgment is conceded, and, such being the fact, we think the motion must be de

was within his power to give a mortgage

which would cover his interest in the propnied. The statutes governing appeals should be liberally construed, to the end that parties erty. In addition to the facts which appear

ed in the case just referred to, an additional may have a review by this court of the rulings of the superior courts when they so de

fact is set out in this complaint, to the effect sire. The appeal statute thus construed will

that the affairs of the partnership had been require us to give force to a notice of appeal

fully adjudicated in a suit between the partgiven after the court had announced its de

ners, and a lien on the property in question

declared in favor of the mortgagor for somecision, although it was before the signing

thing over $500. The reasons for holding that and entering of the formal judgment. For

he had such an interest in the property as some purposes the judgment may not be com

would authorize him to make a mortgage plete until thus signed and entered, but, after such announcement, it was so far complete as

thereon are greatly aided by this adjudica

tion; and, if the conclusion to which we arto sustain a notice of appeal.

rived in the case cited was correct, it is beThe only question presented upon the merits is as to the sufficiency of the complaint of

yond question that, under the facts stated in appellants. We have been able to gather

this complaint, the mortgagor had an interest from the brief of respondents but two grounds

in the property, which he could incumber by

mortgage. upon which they found their contention that such complaint did not state a cause of ac

In our opinion, the complaint stated a cause tion. One is that the interest of the mort

of action, and the superior court committed gagor in the property to foreclose a mortgage

error when it sustained a general demurrer

thereto. Judgment will be reversed, and the upon which the suit was brought was not such that he could make a valid mortgage

cause remanded, with instructions to overrule

the demurrer. 'thereon. The other is that the mortgage and another paper upon which plaintiffs founded rights were not set out, either at length or in

SCOTT and DUNBAR, JJ., concur. substance, in the complaint; that they were only referred to therein, and annexed thereto as exhibits. That there is a line of cases

am not prepared to extend what is said in which hold that a complaint cannot be aided the opinion concerning the failure of plaintiff' by an exhibit referred to therein and attached to set out at "length or in substance" the inthereto is beyond question. But, under the

strument upon which his right to a recovery liberal rule as to the construction of plead

is founded, to all cases, nor to adopt it as a ings under our statute, the doctrine therein rule of pleading. By far the better and safer announced is of doubtful authority in any

rule is that a complaint should state a cause case; and, when there is such a statement of of action by its averments without reference the nature of the paper attached as an ex

to exhibits. Here, however, the exhibit is a hibit as to put an interested party upon in-chattel mortgage,--something which has a fixquiry as to its contents, can be given no force. ed and definable meaning in law and in Eng. The reference in the complaint under consid- lish, and hence I think the reference to it in eration to the attached exhibits was sufficient the pleading is permissible and sufficient. to thus put the defendants upon inquiry, and, in our opinion, made them a substantial part ANDERS, J., concurs in the above.

| GORDON, J. I concur in the result, but

(11 Wash. 268)

hops in the state of Washington, the respond. LIVESLEY V. PIER.

ent claiming that appellant was a member of (Supreme Court of Washington. March 1, the firm of George F. Livesley & Co. After 1895.)

his return from New York City the appellant EXECUTION OF INSTRUMENT CONFLICT OF Evi brought this action against the respondent, DENCE-AUTHORITY OF ATTORNEY_Com

alleging that the amount of $ was due PROMISE OF SUIT.

him upon their hop transactions. The re1. On an issue as to whether plaintiff executed a certain release, several witnesses testi

spondent appeared in this action, and filed his Sed that it bore plaintiff's signature, and he ad- answer and counterclaim to the complaint, mitted that the signature looked like his, and

pleading in bar a settlement and payment of that, if it were not signed to an instrument which he did not intend to consent to, he would

$1,000 and dismissal of the actions in New say that it was his. The release was acknowl- York above mentioned. He also pleaded the edged before a notary, under his seal, and the release executed by appellant, and, as a counnotary swore that plaintiff executed it. Plain

terclaim, the difference between respondent tiff admitted having signed some release, but thought it was not so general as that in question,

and appellant, setting up the claims of rebut his attorney swore that he executed the re- spondent against appellant for the approprialease in question. There was no indication that

tion of the money belonging to respondent by any change or erasure had been made in the release. Held, that a finding that plaintiff ex

appellant in the purchase and sale of hops, ecuted the release was justified.

and the profit made thereon, above referred 2. There being some testimony that a set- to. The issues were tried before a court and tlement arranged by the attorneys for the re

jury. The jury found that the respondent spective parties to a suit was agreed to by their clients, an instruction that, when parties em

did not owe appellant anything. Judgment ploy attorneys to manage their affairs in a pend- was rendered in favor of the respondent for ing suit in court, the attorneys may do anything costs, and the case is appealed here. proper in the management of their business, and that if negotiations are commenced for the com

One ground of appeal is that the evidence promise of a lawsuit, and clients authorize the

does not sustain the verdict in this case. It attorneys to make it, and the attorneys do so, seems to us, from a perusal of the whole recand have the suit dismissed and settled, the dis

ord, that the verdict is amply sustained by missal is a bar to any other suit for the same matter, until the proper action has been brought

the testimony. The defendant offered an to set aside the dismissal, was proper.

agreement, upon which the settlement of the

cases in New York was based, and a release Appeal from superior court, King county; R. Osborn, Judge.

from Livesley, the appellant, to Pier, the reAction by Samuel Livesley against George

spondent, of all claims of any kind up to date.

This release, in so many words, discharged W. Pier. Judgment was rendered for defendant, and plaintiff appeals.

“George W. Pier, doing business under the Affirmed.

firm name of Pier Bros., his heirs, executors, Fishback & Ferry and Henry F. McClure, and administrators, of and from all and all for appellant. Will H. Thompson, E. P. Ed

manner of action and actions, cause and sen, and John E. Humphries, for respondent. causes of action, suits, debts, dues, sums of

money, accounts, reckonings, bonds, bills, DUNBAR, J. The appellant is a dealer in specialties, covenants, contracts, controverhops, residing at Seattle, Wash. Respondent sies, agreements, premises, variances, tresis also a dealer in hops, residing in the city passes, damages, judgments, extents, execuof New York, and doing business under the tions, claims, and demands whatsoever, in firm name of Pier Bros. During the year law or in equity, which against them, or ei. 1890 appellant was engaged in buying hops ther of them, I ever had, or which I, my heirs, for respondent on commission, and in secur- executors, or administrators hereafter can, ing consignments to respondent. The appel- shall, or may have, for, upon, or by reason lant claims he bought a lot of hops, and con- of any matter, cause, or thing whatsoever, signed them to the respondent, for which he from the beginning of the world to the day never received his pay; while the claim of of the date of these presents. Dated Januthe respondent is that the liops were pur- ary 9th, 1891,"—and was filed as defendant's chased by appellant for the respondent, but Exhibit B, and signed by the appellant, Samthat after the purchase, and before the re- uel Livesley. Defendant's Exhibit A is a spondent learned of the purchase of the same, document stating that “whereas, Samuel the price of hops advanced, and that appel- Livesley and George W. Pier have come to an lant sold the hops so purchased to other par- agreement, satisfaction, and compromise of ties, and kept the profit inade from the sale all their differences, including all claims and of respondent's hops. At all events there was demands of every kind and nature held by a dispute between the concerning their hop either of said parties against the other up to account, and in December, 1890, appellant this date, including the claims mentioned in went to New York City to have a settlement the annexed schedules, marked 'A,' 'B,' and of his account with respondent. While he 'C' (which schedules contain the matters and was there respondent brought two suits claims which are the subject of this suit]: against him,-one for $10,000 against appel- Now, said parties agree as follows: Said lant alone; and the other for $5,000 against Livesley accepts from said George W. Pier appellant and his two sons, who compose the one thousand dollars in cash, and an assignfirm of George F. Livesley & Co., dealers in ment of his said claim for $1,120.68 against George F. Livesley & Company, mentioned in contention of respondent that these instruSchedule C, said assignment being without ments were executed by Livesley. Livesley recourse to George W. Pier, in full accord, says that he did not authorize the delivery of satisfaction, compromise, and settlement of these instruments to Pier, but that he gave all claims and demands of every kind up to them to Wade to show to Pier, as Wade repthis date, including the matters mentioned in resented to him that Pier would not pay the Schedule A, as well as all other matters, money without he was shown this release. should there be any, growing out of or in any It seems to be rather a foolish contention that way connected with their business relations | Pier would withdraw his suits against Livesup to that date, or with any contracts made ley, and pay out money on a settlement in relation to the hop business up to this date; which was based upon an agreement, simply and the said George W. Pier hereby releases upon the sight of the agreement, without oband discharges said Samuel Livesley of and taining possession of it. So far, then, as the from all claims, demands, liabilities, and testimony is concerned, even conceding that causes of action, including the claim for dam- there was an intelligent contradiction, there ages for $10,000 embraced in the complaint in was evidently sufficient testimony which, if the action in the supreme court where said uncontradicted, would have sustained the Pier is plaintiff and said Livesley is defend- verdict, and it will therefore not be disturbed ant.” This agreement is signed by Samuel by this court. Livesley, who affixed his seal. It appears It is claimed also by the appellant that the that, upon the receipt of these agreements, court erred in its instructions. The instrucPier withdrew the suits against Livesley, and tions are lengthy, and the instructions obpaid to Wade, who was the agent and attor- | jected to are also too lengthy to be inserted ney of Livesley, the $1,000 mentioned; one

here. The main contention, however, is emof the checks being for $500, in favor of the braced, in substance, in the following inappellant, and the other for $500, in favor of struction: “The court instructs you that, Wade, the attorney. According to the testi- when parties employ attorneys to manage mony of Pier, and it is not contradicted, their affairs in a suit pending in court, said Wade retained the check of $500 for his serv- attorneys have authority to do anything that ices, and paid the other over to Livesley. In is proper in the management of their busihis testimony Livesley denies having execut- ness, and that if negotiations are commenced ed or signed these instruments, and appellant for the compromise and settlement of a lawinsists in his brief that the only evidence that suit, and clients are informed of the fact, he did so is found in the testimony of Wade, and indorse the settlement, and authorize but we think the appellant is mistaken as to the attorneys to make it, and the attorneys the testimony. The signature attached to go forward and make the compromise and these instruments was proved by several wit- settlement, and close up the matter, and nesses to be the signature of Livesley. In have said suit that is pending between the fact, Livesley himself testifies that it looked parties dismissed and settled, then so long like his signature, and that, if it were not as the said suit is dismissed it is a bar to attached to a paper the conditions of which any other suit for the same matter until the he did not intend to consent to, he should say proper action has been brought to set aside that it was his signature. There was also an and vacate the dismissal of the suit, and reacknowledgment to these instruments, so far store the parties to the same position in as the face of the instrument is shown, by a which they were before said compromise notary public, one Henry Werzbach, who cer- and settlement; and until they have been retifies, over his notarial seal, that Samuel stored in a court of equity, or in some other Livesley was personally known to him to be proceeding, according to law and to the the individual described in and who executed rights that existed prior to the dismissal of the foregoing agreement, and that he ac- said suit, and placed in the same position knowledged the execution thereof, and Werz- they were before said suit was compromised bach swears that Livesley did so execute and dismissed, then no action can be mainthese instruments. Livesley himself testifies tained by one against the other.” It is conto having executed some instruments of re- tended that there was no testimony which lease, but he thinks that they only went to would justify this instruction, because there the extent of settling the business which was was no testimony tending to show that in a then being adjudicated, and that the matters suit pending the attorneys got together and and things which he is now suing upon were made a settlement which was agreed to by not inserted in such agreement. We think, their principals. We think, however, there however, the fact of the positive testimony of some testimony which would justify Wade, and the positive testimony, acknowl- this instruction,-the testimony of Wade; edgment, and certificate of the officer Werz- and, whether this testimony is reasonable bach; and the further fact that the signature or unreasonable, it went to the jury, and to these instruments is proven to be the sig- they were the judges of its reasonableness. nature of Livesley; and the further fact that Neither do we think the contention of the there is no indication of any change or era- appellant is justified that “the court virtusure on the face of these instruments,-render ally tells the jury in these instructions that, the testimony overwhelming in support of the if the attorneys for the respective parties

was

chose to get together and make a settlement, made,-if he made that contract which has they had a right to do so, whether specially been introduced in evidence,-tbat ends this authorized so to do or not, merely by reason case. Mr. Humphreys: He made that conof the relation of attorney and client, and tract unless he shows this paper has been whether the client had any knowledge of the changed since he signed it. The Court: terms of the settlement before the same was That is what the court holds. He admits made or not, or whether or not the client that the papers contain his signature.” assented thereto, or, in fact, knew anything While it might not have been necessary for about it.” As we understand the instrur. the court to say this, it was so evidently tions of the court, no such idea was intended the undisputed truth, both as to law and to be enunciated, and we do not think the fact, that no error could be based upon it, jury would get such an idea from the in- because no prejudice to plaintiff's rights structions themselves. The court had pre- could have been created thereby; for, if viously laid down the question of authority | Livesley made and signed the contract, that to the jury in the following language: "If did end the case, and that was the whole a client intrusts a paper to his attorney, the question at issue, the appellant contending attorney's possession is the client's posses- he did not make and sign this contract, and sion; that is, the paper still continues to be respondent that he did; and the court simin the possession of the client. So far as ply held that if he made that contract, unthird parties are concerned, if these papers | less it had been changed since he signed it, are delivered by the attorney, it must be by he would be bound by it, and would have reason of the fact that the client authorized no cause of action. We do not think this him so to do. If the matter to be settled was stating to the jury the conclusion of thereby is settled out of court, the attorney the court with regard to the testimony of has no other or greater authority than such the appellant, but that he simply stated the as is expressly given to him by his client, legal effect of making and signing this conand it is the duty of the person with whom tract, provided it was conceded that the he deals to ascertain the extent of the au- appellant did make and sign it. No subthority conferred upon the attorney. An at- stantial errors appearing, the judgment will torney at law has no right to release a cause be affirmed. of action without the consent of his client." This instruction was as favorable to the ap- HOYT, C. J., and SCOTT, ANDERS, and pellant as it should have been. The appel- GORDON, JJ., concur. lant complains that, while this is true, there are some portions of the charge, in relation to the effect of the action of the attorney,

(11 Wash. 26.) which are so often repeated by the court

MILLER v. BORST et al. that the jury were likely to forget, by reason

(Supreme Court of Washington. Feb. 20, of such repetition, that such instructions

1895.)

PLEADING-ALLEGATIONS AS TO EXECUTORS' Pow. were to be qualified by other portions of the

ERS-ADMINISTRATION WITHOUT AID OF COURT charge. But we do not think that mere

--AUTHORITY TO GIVE MORTGAGE. tautology in the language of the court would 1. In a complaint seeking the foreclosure of warrant the conclusion that the jury was a mortgage given by an executor upon his testamisled. The other proposition laid down by

tor's property, an allegation that "the will au

thorized and directed said executor to administer the court, that the appellant could not sue

upon said estate without the intervention, order, the respondent upon any matters that were or advice of any court, and to fully execute all settled and compromised, without setting

its terms and provisions," sufliciently shows that aside the settlement and placing the respond

the terms of the will dispensed with letters of ad

ministration. ent in statu quo, is elementary. Without re- 2. A complaint which states that a person viewing minutely all the different portions

named as executor and trustee executed a cerof the charge, we think the case was plainly

tain note and mortgage, and that he had “ex.

ecuted and performed all the terms and condiand fairly presented on both sides to the tions of the will." it also appearing that the tesjury, and that they were not misled in any tator wished his estate administered without particular by the instructions of the court.

the aid of any court, sufficiently alleges that the

will conferred authority to give such note and The appellant also raises strenuous objec

mortgage. tions to the action of the court in comment- 3. Allegations that an estate has been fully ing on the testimony, in the following col

administered according to the provisions of a

will, and that certain acts have been done in the loquy between the attorneys and the court:

course of such administration, must be construed "Question by Mr. Fishback: When you to mean that such acts were within the power came back here from New York City, what conferred by the will. statement, if any, were you to make, Mr. Appeal from superior court, King county; Livesley, as to whether or not the assigned J. W. Langley, Judge. account was correct or not, and as to whether Action by Mary H. Miller against Kate M. they would pay it? Mr. Humphreys: The Borst and others. Defendants' demurrer to contract introduced in evidence shows that the complaint was overruled. They stood it was to be done without recourse. The upon the demurrer, and, from a judgnient Court: If Livesley signed that contract, that against them for want of an answer, bring ends the case. If that was the contract he this appeal. Affirmed.

« ΠροηγούμενηΣυνέχεια »