J. F. Hart Lumber Co. v. Rucker

Per Curiam.

This is the fifth time in the course of the litigation that this cause has received the attention of this court. Its history will be found in Hart Lumber Co. v. Rucker, 15 Wash. 456 (46 Pac. 728); State ex rel. Hart Lumber Co. v. Superior Court, 16 Wash. 347 (47 Pac. 754); Hart Lumber Co. v. Rucker, 17 Wash. 600 (50 Pac. 484); State ex rel. Rucker v. Superior Court, 18 Wash. 227 (51 Pac. 365).

The present appeal is from a judgment entered upon the verdict of a jury. The errors assigned relate to rulings of the court (1) in permitting the answer to be amended and a supplemental answer filed, and thereafter receiving evidence in support of the new defenses raised by such amendments; (2) in requiring the plaintiff to admit that an absent witness would, if present, testify as set forth in an affidavit, in order to avoid a continuance; (3) in submitting certain interrogatories to the jury, and in the charge and refusal to charge; (4) in denying plaintiff’s motion for a new trial, and its motion for judgment non obstante veredicto.

1. The application of parties for leave to amend the pleadings, as well as the application for a continuance, was addressed to the sound discretion of the court, and the appellant has failed to convince us that this discretion was abused. The court also exercised a discretion in submitting special interrogatories to the jury, and we are satisfied that no error was committed in this particular.

2. The fifth affirmative defense set up in the amended answer alleged, in substance, that the respondent, Rucker, acted for and on behalf and at the request of John F. Hart, appellant’s assignor, in purchasing the property out of which this litigation arises. There was considerable evidence introduced by the parties directed to this issue, and in many respects the evidence was very conflicting. In answer to special interrogatories addressed to them, the jury have found that this defense was fully established. After a careful examination of every exception relating to the submission of this issue, we think that it was properly submitted to the determination of the jury, under instructions which were certainly very favorable to the appellant, and of which no just complaint can be made by it. This defense, if established, was complete in itself and entitled the defendant to judgment. We think it was established, and the verdict of the jury must be regarded as conclusive.

With reference to the other issues raised by the pleadings, the findings of the jury were in plaintiff’s favor and, if any error was committed in submitting those issues to the jury’s consideration, it was harmless and without prejudice to the plaintiff. The trial in the lower court consumed a great deal of time, and a very large volume of evidence was introduced. The presiding judge was eminently fair and just, and no material or substantial right of the parties was disregarded. The jury saw the witnesses, heard their testimony, and rendered a verdict for the defendant. The plaintiff must abide the result.

The judgment is affirmed.