G. E. Lovell, of Ritzville, and E. A. Davis, is his statement that he was going to try an of Pasco, for appellants. experiment. The use which he suggested Samuel P. Weaver and Weaver & Boyles, would not be an experiment, but something all of Sprague, for respondents. HOVEY, J. These are consolidated actions wherein the respondents recovered judgments for the value of their respective automobiles destroyed by fire in a garage belonging to the appellants. that he well understood. One witness testi- [2] While in this case the evidence is to the effect that no one heard any explosion, the explosion necessary to start this fire need not have been loud enough to be heard by the employés, none of whom seemed to have been right at the stove when the fire started. The fire occurred about 9 o'clock in the morning on December 9, 1919. The weather was very cold, and the building was heated by two stoves, one in the front part and one in the back part which was partitioned off as a workshop. The fire started in or about the stove in the rear. The stove was being heated with coal, and according to the testimony the fire was low and consisted only of coals; some of the witnesses saying the coals were red-hot and another one that they were pretty well burned out. The manager of this garage, Judisch, shortly before the fire, made the statement, according to several witnesses, that he was going to try an experiment and burn oil instead of coal. It it undisputed that he caused a welding tank to be rigged up with a length of hose attached at one end to the tank and the other end to an iron pipe which had at its other end a preheating torch such as is used for welding, and this preheating torch was in the stove when the fire started. The tank was connected up with the air pressure system of the garage. Although there is some dispute as to whether it had been made to work perfectly at the time of the fire, it is fair to assume from the testimony that it was working. The tank was supposed to be emptied of fuel when fitted up, but Judisch told one of the employés to get a can and put oil in it. It is disputed that there was oil in it at the time of the fire, but, as considerable time elapsed between the time the employé start-1. Pleading 350 (3)-Whole record consid ed to get the oil and the explosion, and he only had to go across the room, it is fair to assume that he put the oil in there. The only direct testimony as to the starting of the fire is that there was first smoke and then flame from the stove door, and it is undisputed that this flame soon spread itself the full length of the building, probably being carried by the gas which accumulated there from the automobiles, of which a good many were stored in the building. Appellants severely attack the judgments of the trial court as not justified by the testimony, but we believe there was sufficient to establish liability. We consider the following cases in point: Graaf v. Vulcan Iron Works, 59 Wash. 325, 109 Pac. 1016; Wodnik v. Luna Park Amusement Co., 69 Wash. 638, 125 Pac. 941, 42 L. R. A. (N. S.) 1070. The judgments are affirmed. PARKER and MAIN, JJ., concur. HOLCOMB and MACKINTOSH, JJ., concur in the result. (119 Wash. 375) DEAVER v. PATTERSON et ux. (No. 16871.) (Supreme Court of Washington. April 3, 1922.) ered on motion for judgment on pleadings. On motion for judgment on the pleadings, the court will consider the whole record, and give judgment for the party appearing there from to be entitled to it. 2. Pleading 350 (3)-Matters admitted on motion for judgment on pleadings stated. The party moving for judgment on the pleadings, for purpose of motion admits not only the allegations of his adversary, notwithstanding he had already filed pleading denying them, but also admits the untruth of his own allegations that had been denied. 3. Pleading 350 (3)-Reply held to prevent defendant having judgment on plaintiff's motion for judgment. The explanation of Judisch is that he put the preheating device in the stove merely to get it hot, and that he was then going to keep it outside in the room with the oil burning, and that the heat from this torch would supplement the heat from the stove, and that they found in the summer time that the torch made an unpleasant amount of heat, and he thought they would utilize it in cold weather. As against this explanation of action. vail on his motion for judgment on the pleadThough, as regards plaintiff's right to preings, his reply to the cross-complaint previously filed does not aid him, it does prevent judgment for defendant when the complaint states a cause For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Department 2. (205 P.) waived the denials in his reply of the materi Appeal from Superior Court, King County; al matter in the cross-complaint. The crossA. W. Frater, Judge. Action by Oscar Deaver against T. W. Patterson and wife. Judgment for plaintiff, and defendants appeal. Affirmed. complaint, if the allegations were true, would entitle the appellants to prevail. The motion therefore could not be granted. Even though the allegations of the reply were waived while considering the respondent's right to Gates & Helsell, of Seattle, for appellants. a judgment on the pleadings, it does not folH. A. Martin, of Seattle, for respondent. low that, when the court considered whether the appellants were entitled to a judgment MAIN, J. The purpose of this action is as the record then stood, they would be waivto quiet title to certain real property. The ed for that purpose. In considering the right defendants responded to the complaint by an of the appellants to prevail, it would be necanswer which contained admissions and de-essary to give effect to all of the allegations nials and a cross-complaint in which they of the respondent. If when the respondent sought to have title quieted in themselves. The material allegations of the cross-complaint were denied by reply. With the issues in this shape the plaintiff made a motion for a judgment on the pleadings, which was overruled. The cause went to trial, and resulted in a judgment sustaining the plaintiff's title, from which the defendants appeal. The respondent had acquired title to the property by deed on the 14th day of May, 1910. The appellants claim title by reason of a sheriff's sale made after judgment in favor of the appellants and against one James Deaver. It is the contention of the appellants that James Deaver owned a beneficial interest in the property, and that respondent held the legal title for his benefit. The motion for judgment on the pleadings will be first considered. [1-3] The appellant contends that by making the motion the respondents waived his reply and that, since the answer pleaded a good defense, he was entitled to judgment. The law with respect to a motion for judgment on the pleadings which is generally approved by the courts is well stated in 31 Cyc. 606, as follows: "A motion for judgment upon the pleadings is in the nature of a demurrer. It is in substance both a motion and a demurrer. It is a demurrer for the reason that it attacks the sufficiency of the pleadings; and it is a motion for the reason that it is an application for an order for judgment. Like a demurrer it admits the truth of all well-pleaded facts in the pleadings of the opposing party; it may be carried back and sustained against a prior pleading of the party making the motion, and the court will consider the whole record and give judgment for the party. who, on the whole, appears entitled to it." Under this rule, when the motion is made the court will consider the whole record, and give judgment for the party who appears entitled thereto. The party making the motion for the purpose thereof admits not only the allegations of his adversary, but also the untruth of his own allegations that have been denied. Applying these rules, the respondent, when he made his motion, admitted the allegations of the cross-complaint, and in effect, so far as his motion was concerned, made his motion his complaint had not stat- Our attention has been directed to no case which holds that, where the plaintiff makes a motion and fails, the defendant is entitled to judgment when the complaint states a cause of action and the affirmative matter in the answer is denied by the reply. Upon the merits the trial court found that the respondent was the owner of the property, and had been such owner since the 14th day of May, 1910, which was long prior to the time when the judgment was rendered upon which the sale took place, and through which the appellants claim title. The evidence would not sustain a finding that the respondent held only the bare legal title, and that the beneficial interest was in James Deaver, the judgment debtor of the appellants. The judgment will be affirmed. PARKER, C. J., and MACKINTOSH, HOI. COMB, and HOVEY, JJ., concur. MAIN, J. This case is brought here by writ of certiorari, to review an order of the superior court adjudging that a reasonable necessity existed for the condemning of a private way of necessity across lands owned by the relators. The respondents are the owners of Driscoll Island, in Okanogan county, which consists of approximately 170 acres of land lying in triangular shape between Similkameen river on the west and the Okanogan river on the east and south, and a slough or arm connecting the two rivers on the north. Both the slough and Okanogan river can be forded by teams at all times except during a period of high water of from four to eight weeks. It is not practicable, and probably not possible, to ford either the slough or the river with automobiles or trucks. During high water the only way of reaching Driscoll Island is by boat. The respondent and his family reside on the island, and the land thereof for many years has been devoted largely to the raising of hay, but portions of it are well adapted to the growing of fruit and other products that may be grown in the Okanogan valley. The land of the relator is north of that of the respondent, the two tracts being separated by the slough. It does not seem to be contended but that the respondents are entitled to a means of going from the island to an established highway. The road proposed by the respondents, and which the trial court sustained, goes to the north, crossing the slough and across the land of the relator for a distance of about one-half a mile, and leads directly into the town of Oroville. The route which the relators contend should be taken is to the east, crossing the Okanogan river at some point beyond, connecting with the highway leading to Oroville. [1] Before the respondents are entitled to condemn a private way of necessity they are required to show a reasonable necessity for the proposed road, and that they have not State ex rel. Carlson v. Superior Court, 107 any other practicable or feasible way out. Wash. 228, 181 Pac. 689, and State ex rel. Stephens v. Superior Court, 111 Wash. 205, 190 Pac. 234. [2] The trial court found that the road proposed by the respondents was the only ¦ “practicable outlet from plaintiffs' [respondents'] said premises to a public road." It is necessary to inquire whether the road proposed by the respondents is the only prac ticable or feasible one by which the respondents will have access to a public highway. Any way out would require either the bridg ing of the slough or the Okanogan river. A bridge across the slough would be practically 150 feet long, and that across the river approximately 285 feet, with approaches of from 75 to 100 feet. The cost of bridg ing the slough would be approximately $1,500, and the river $4,000. If the road to the east were taken after crossing the river it would be necessary to cross the Great Northern Railway tracks on a curve with a 15 per cent. grade, and would result in a very dangerous crossing, even if permission could be obtained for making it. The county engineer, who was apparently a disinterested witness, testified as follows: "Crossing over the Okanogan is prohibitive is the length of a bridge; it will be very nearly from several points of view (S. F. 25). One twice as long as a bridge crossing the slough, and from that point of view alone it would be very nearly double the expense to construct a trestle bridge across there. Second, you are going to have to provide against any undue current, any flood water that might come down the Okanogan, which you would not in the slough, as there would be no current to speak And the third reason is climbing a steep grade to cross the railroad on a curve." of. There being no other practicable or feasible road out other than that proposed, a reasonable necessity existed therefor. The case of State ex rel. Carlson v. Superior Court, supra, relied on by the relators, is easily distinguishable. In that case the condemnation of a private road of necessity was sought by one who had a way out over other premises which was capable of being made usable at an expense which was within For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (205 P.) reasonable bounds. It was there held that, on the condition that the interest then due be the petitioner had not maintained the burden of proof, that a reasonable necessity existed, and that he had gone no farther than to show that the way which he sought to condemn was more practicable than the way which he then had, and this was not sufficient to establish a reasonable necessity. In the present case, as already suggested, the respondents had no other feasible or practicable way out, and therefore a reasonable necessity existed for making the condemnation. The judgment will be affirmed. PARKER, C. J., and MACKINTOSH, HOLCOMB, and HOVEY, JJ., concur. (119 Wash. 587) BASSEN et ux. v. ANDREWS. (No. 16869.) (Supreme Court of Washington. April 14, 1922.) Appeal and error 1011(1)—Finding of trial court based on conflicting evidence upheld on appeal. Where, in an action to recover the amount of a note which plaintiff alleged had been wrongfully destroyed by defendant, the evidence was conflicting as to whether defendant paid the note at the time he destroyed it, held, that the evidence did not preponderate in defendant's favor so as to warrant disturbing a finding of the trial court in favor of plaintiff. Department 1. paid, which interest was paid two days thereafter, the respondent Paul Bassen executing a receipt acknowledging the payment; that at the expiration of the extension period the respondent again presented the note for payment, at which time the appellant stated he would pay it on the 6th of the month, some three days later; that the note was again presented to the appellant on the 6th day of the month by the respondent Paul Bassen, when the appellant, under the pretense of examining it, took it from the respondent's hands and destroyed it, refusing then and thereafter to pay the note or the amount thereof. The prayer was for the amount of the note with interest. Answering the complaint the appellant admitted the purchase of the property, but denied each and every other allegation contained in the complaint. The cause was tried by the court sitting without a jury and resulted in a judgment in favor of the respondents. The contention in this court is that the evidence preponderates against the conclusion of the trial court, but after a careful examination of the evidence we do not feel warranted in disturbing its findings. The respondents' case rests largely, it is true, on the testimony of Paul Bassen, but his conduct and his testimony has been consistent throughout. As much cannot be said of the appellant. In his answer he denied even the making of the note, while in his testimony he admitted the making, the extension of time of payment, the payment of interest, Appeal from Superior Court, King County; and the destruction of the note, testifying Everett Smith, Judge. Action by Paul Bassen and wife against S. J. Andrews. From judgment for plaintiffs, defendant appeals. Affirmed. Jay C. Allen and Allen & Griffith, both of Scattle (E. W. Howell, of Seattle, of coun sel), for appellant. Houser & Davis, of Renton, for respond ents. FULLERTON, J. The respondents Bassen instituted this action against the appellant, Andrews, to recover a money judgment. In their complaint they alleged that on June 3, 1919, they sold to the appellant certain described real property for a consideration of $3,500; that $3,000 of the consideration was paid in cash, and a note for $500, bearing 6 per cent. interest, due in one year, was given to evidence the deferred payment; that on the due date of the note it was presented to the appellant for payment; that the appellant then stated that he did not have the cash with which to pay the note and asked that the time of payment be extended one month; that the extension was granted that he paid the principal of the note at the time of its last presentation, and that the difficulty between himself and Bassen arose over the fact that he refused to pay interest on the principal sum for the time of the ex tension. Pleadings are, of course, prepared by counsel, and are necessarily couched in counsel's language rather than in the language of the client. But the pleadings usually reflect the claims of the client, and if in this instance the appellant had stated truly to his counsel the nature of his defense, it is hard to believe there would have been such a radical difference between his pleadings and his proofs; it carries the inference that there has been a change of front. The circumstances occurring at the time of the last presentation of the note also support the respondent rather than the appellant. After the destruction of the note, the respondent went out and brought in a police officer, and in the officer's presence accused the appellant of destroying the note without paying it. The appellant again asserted that he had paid the note, and produced to the officer the receipt showing the payment of the interest a month before as For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes proof of the payment. The officer would not | ant an additional time until the 1st of Decemsay that the appellant directly stated that he had paid the principal of the note at the time of the interest payment, but testified that such was the impression he gathered from the appellant's statement and conduct. On the other side there is nothing but the naked testimony of the appellant to support his claims. The trial court had the superior advantage to judge of the truthfulness of the testimony of the witnesses, and, in instances of this sort, we feel that such an advantage ought to be controlling. The judgment is affirmed. PARKER, C. J., and MITCHELL, TOLMAN, and BRIDGES, JJ., concur. (119 Wash. 519) MUCKLE v. HOFFMAN. (No. 16885.) (Supreme Court of Washington. April 11, 1922.) Frauds, statute of 138(4)-Purchaser under oral contract held entitled to recover value of labor performed on land on seller's refusal to perform. Where an oral contract was entered into for the sale of land, and purchaser relied thereupon, went into possession, and did work by plowing and weeding and preparing the land for seeding, and seller refused to perform or execute the written contract contemplated, the statute did not prevent recovery of the value of the work done upon the land. Department 2. ber, 1919, for the making of the first payment. "That the plaintiff relied upon the said oral agreement and went into possession of the said of 1919, by plowing and weeding the same and premises and did work thereon in the summer preparing the same to be seeded to wheat, which said seeding was to be done in the spring of 1920. That the doing of said work by the plaintiff was with the knowledge and express consent and approval of the defendant. * * Upon these findings judgment for $340 was entered for the respondent, from which this appeal has been taken. It has been the contention of the appellant throughout the progress of this case that the respondent's action could not be maintained for the reason that the oral contract between the parties fell within the statute of frauds. This action is not one seeking to enforce the oral contract, but to recover the value of the labor which the respondent performed under the contract to the benefit of the appellant, which was obtained by the appellant's wrongful act. This court, in Johnson v. Upper, 38 Wash. 693, 80 Pac. 801, refused to allow damages for loss of profits for the breach of an oral contract, falling within the statute of frauds, but recognized the rule that, where there Appeal from Superior Court, Franklin has been a part performance in good faith County; John Truax, Judge. Action by W. G. Muckle against Louis Hoffman. Judgment for plaintiff, and defendant appeals. Affirmed. by the plaintiff of the contract entered into, and the performance was made in reliance upon the contract and in pursuit of it, and the refusal on the part of the defendant Chas. W. Johnson, of Pasco, for appellant. would result in fraud, injustice, or oppres MACKINTOSH, J. A reading of the testimony in this case shows that the evidence preponderates in favor of the following findings of fact made by the trial judge: sion, that an action for the value of the work done in compliance with the contract and in execution of it could be maintained against the defendant, upon the equitable doctrines of fraud and estoppel, for the reason that "the defendant is really 'charged' upon the equities resulting from the acts done in execution of the contract, and not (within the meaning of the statute) upon the contract itself." The court said further in that case: "That in the summer of 1919 the plaintiff and defendant made and entered into an oral agreement whereby the defendant agreed to sell to the plaintif for $1,000 a quarter section of wheat land in Franklin county, Wash. That no written contract was made by the said parties, but that the said parties agreed that they would, at some later date, go to the town of Connell, and have a written contract prepared, and would sign the same, and that under the said contract the plaintiff would agree to pay and would pay to the defendant the sum of $500 on the 1st day of October, 1919, and the remaining sum of $500 at a later date. That before the court in effect holding that had there the 1st day of October, 1919, the plaintiff asked been such an allegation in that case the comof the defendant and was granted by the defend-plaint would have stated a cause of action. "If appellant had sustained any damages by reason of improvements, or money expended, or altered condition of the parties, or time spent or labor performed, such damages, no doubt, would have been alleged" For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |