Tingley v. Fairhaven Land Co.

Citations

• 9 Wash. 34
• 36 P. 1098
• 1894 Wash. LEXIS 251

Syllabus

<p>REVIEW ON APPEAL — CONTRACTS — ALTERATION — PLEADING- — EVIDENCE — INSTRUCTIONS.</p> <p>The insufficiency of the evidence to sustain the verdict, where there was no motion for a new trial upon that ground, cannot be raised upon an appeal from an order denying defendant’s motion for judgment upon answers to special issues submitted to the jury, as, upon such motion, the pleadings together with the findings returned by the jury as the facts of the case are all that the court is called upon to consider.</p> <p>A written contract for the sale of logs, providing for their delivery at the purchaser’s mill, may be modified by a subsequent parol agreement whereby the purchaser waives delivery at the mill and accepts possession of the logs as afloat in a certain river and in certain booms therein, without requiring any consideration for the new agreement, and without violating the statute of frauds.</p> <p>Where the complaint in an action for the price of logs alleges that defendant took possession of them, the complaint is sufficient although other allegations may show that the plaintiff was not in the actual possession of the logs at the time of sale.</p> <p>A witness cannot fortify his testimony by reference to memoranda when the entries were not made at the time as the result of matters wholly within his own knowledge, but were derived from the reports of servants.</p> <p>Where, in an action for the price of logs, defendant has put in evidence the sworn complaint of the same plaintiff in another action, claiming damages from a boom company for the loss of the same logs, it is error for the court to refuse to charge the jury as to the legal effect of the complaint as an exhibit.</p>