Marvin v. Yates

Citations

• 26 Wash. 50
• 66 P. 131
• 1901 Wash. LEXIS 605

Syllabus

<p>PLEADING-STJPPICIENCY OP COMPLAINT-ACTION POE DIVISION OP PEOPITS.</p> <p>A complaint alleged that plaintiff invested funds for defendant’s testator in real estate under an agreement that the decedent should sell upon plaintiff’s advice, and plaintiff should have one-half of the net profits arising from the transactions; that decedent refused to sell a portion of the real estate when advised by the plaintiff and ■ that plaintiff’s share of the profits thereon would have been $9,050; that plaintiff performed other services for decedent of the reasonable value of $400 per annum, from January 1, 1887, to January 1, 1893; that on or about June 1, 1889, plaintiff and decedent had an accounting, whereby the latter agreed to convey or bequeath to the former a certain piece of real estate of the value of more than $12,000; that the decedent failed to either convey or bequeath said realty, wherefore plaintiff demands judgment for $11,850. Held, that the action was not one upon an account stated, and was proof against demurrer on the ground of not stating facts sufficient to constitute a cause of action, since it stated facts showing a contract for a division of profits, rather than an oral contract for the conveyance of realty.</p> <p>SAME — DEMURRER-SPECIFICATION OF GROUNDS.</p> <p>A demurrer for want of facts will not reach the objection that two causes of action have been improperly joined.</p> <p>SAME — OVERRULING DEMURRER-HARMLESS ERROR.</p> <p>The fact that a demurrer on the ground that the action was not commenced within the time limited by law was overruled was harmless error, when it appeared from the reply and the evidence that it could not have been sooner brought because the defendant resided in another state.</p> <p>EVIDENCE — RECITALS IN DEEDS AS TO CONSIDERATION-CONCLUSIVENESS.</p> <p>In an action to recover a division of profits upon the purchase and sale of real estate, the recitals in the deeds covering the purchase and sale of such realty must be held c