DocketNumber: No. 6437
Citation Numbers: 44 Wash. 668, 87 P. 947, 1906 Wash. LEXIS 897
Judges: Hadley
Filed Date: 12/12/1906
Status: Precedential
Modified Date: 10/19/2024
This is an action in replevin, to recover the possession of a diamond ring, or the value thereof, and its value is alleged to be $250. Joseph Hoeslich and Uncle Joe Diamond Broker, a corporation, were made defendants. The complaint alleges, that in August, 1904, the defendant Joseph Hoeslich was conducting a loan and pawnshop business in Seattle, under the name of “Uncle Joe,” and otherwise known as “Uncle Joe Loan Office;” that in said month the plaintiff pawned with said Joseph Hoeslich the ring, in question, of which plaintiff was the owner, and that he received thereon the sum of $50, with the understanding and agreement that the ring should be kept by said Hoeslich until said sum-was repaid, it being further agreed that, if the sum was repaid within one year, then, in that case, plaintiff should pay $15 for the use of the money, or $65 in all; but if redemption was not made within a year, then plaintiff was to pay $25 for the use of the money, or $75 in all. It is also alleged, that said Hoeslich then delivered to plaintiff a receipt in writing, setting forth said agreement, which was numbered 9041, and that entry thereof was made in the books of said loan office; that thereafter, on the 2d day of November, 1905, plaintiff tendered the sum of $75 to defendant, Joseph Hoeslich, at said loan office, and demanded the return of the ring, which was refused.
Further allegations are to the effect that, after the making of said pledge agreement, the said Hoeslich incorporated said loan office and business, under the name of “Uncle Joe Diamond Broker,” such incorporation being simply for convenience and for the purpose of taking over and conducting
A motion has been made to dismiss the appeal, on the ground that no bond on appeal was filed within five days after service of the notice of appeal. The notice of appeal bears date July 16, 1906, and the file marks show that it was filed the same day. The bond was also dated and filed July 16. The service clause appended at the foot of both the notice and bond, and signed by respondent’s attorney, bears date July 9, which was seven days before the actual date of the notice and bond. The argument is made that the service date of the notice shows that the appeal was taken on the 9th, and that, as the bond was not filed until the 16th, it was not within five days after the appeal was taken. The service date of the notice is manifestly an error, since it antedates the instrument itself. The same error appears upon the bond, and the record satisfies us that the appeal was not taken until the 16th, and the bond was both served and filed on that day, which was within time to perfect the appeal.
The motion to dismiss the appeal is urged upon the further ground that the appeal is from a judgment against one of the defendants only, and that the action is still pending in
Appellant assigns errors upon the court’s findings as to the facts. No verbatim report of the evidence was made at the trial, but a narrative statement of the testimony has been embodied in the statement of facts, and certified by the court. The findings made by the court substantially conform to the allegations of the complaint hereinbefore set out, and we think they are sufficiently supported by the evidence. We shall, therefore, not disturb such findings as were made by the court, but we shall hereinafter refer to a material fact upon which the court made no finding.
It is assigned that the court erred in its conclusion of law. It is argued that the conclusion was erroneous, for the reason that respondent cannot recover because of the statute of frauds. It is asserted that there was no agreement in writing, and that the agreement shown in evidence was not to be performed within one year. The complaint alleges that there was a written receipt given to respondent which stated the terms of the agreement. The court found that there was such, and we have said we think the evidence supported it. The objection raised on the ground of the statute of frauds is, therefore, not well taken.
It is further claimed that the contract was unilateral, and could not have been enforced by appellant, for the reason that no definite time was fixed for its performance, and that respondent was given the right to redeem at any time after one year, upon payment of $75. Whatever may be said as to the time within which appellant might have enforced its
Appellant argues that there was no evidence of the tender having been kept good. The complaint alleges a tender to appellant and a refusal to accept it before suit, and also that it was brought into court. The court expressly found that there was a tender made on November 2, 1905, which was before suit was brought; but did not expressly find that the tender either was, or was not, kept good. There was evidence of the tender before suit, but we find no testimony that it was brought into court and kept good. The statement of facts, however, contains the following recital:
“The defendant admitted in open court that a tender, as alleged in plaintiff’s complaint, had been made, and that it would be unnecessary to offer proof of that subject.”
The above admission relieved respondent of the necessity of making proof upon the subject of tender “as alleged in plaintiff’s complaint,” which covered both the original tender and the bringing of the same into court. It did not, however, extend to an admission that the tender had been kept good until the time of the trial. Respondent’s right to maintain the suit, and obtain the judgment, depended upon whether he had tendered the $75, and had at all times kept the tender good. Appellant argues, with apparent seriousness, that the judgment is against it for the return of the ring or its value,
The judgment upon the record before us is therefore reversed, and the cause remanded, with instructions to the trial court to vacate the judgment, and then proceed to ascertain if the tender in court was at all times kept good, and to enter an additional finding upon that subject. If it shall be found that the tender was kept good, then judgment shall be entered to the same effect as the former judgment. Otherwise judgment shall be entered dismissing the cause. Appellant is entitled to recover its costs upon this appeal.
Fullerton, Dunbar, and Crow, JJ., concur.
Mount, C. J. and Rudkin, J., took no part.