title:
J H McGraw, Appellant, vs Carrie Franklin, Appellee, Reply Brief of Appellant.
title:
88
creator:
J. H. McGraw
contributor:
Preston
contributor:
Carrie
contributor:
Preston
contributor:
W. S. Bush
date:
1890-10
publisher:
Washington State Supreme Court
type:
Civil
subject:
Remedies
language:
eng
format:
application/pdf
description:
Prior History: Appeal from Superior Court, King County.Statute of Frauds – Replevin – Fraud – Evidence – Verdict – A promise to pay the note of another at maturity need not be in writing where the promise is made directly to the maker of the note and in consideration of its execution.Goods recently sold to plaintiff were attached by a creditor of her vendor, and in consideration of plaintiff’s giving her note and a mortgage on the goods for the debt, the vendor promised to pay the note at its maturity. The note and mortgage were assigned by the payee to the vendor’s brother, who foreclosed the mortgage, in replevin against the sheriff in possession of the goods under the foreclosure proceedings, plaintiff alleged that the vendor in fact paid the note, but instead of discharging the mortgage he fraudulently procured its transfer to his brother. It was shown that the brother had no money with which to buy the note, and it was conflicting as to whether the money with which the note was purchased was furnished him by the vendor or another person. Held, that a judgment for plaintiff would not be disturbed.Where, in the cross-examination of a witness, the defendant brings out the fact that the brother had stated he was to get money from an old schoolmate, it is no error for the plaintiff to show, on the failure of the brother to testify at the second trial of the cause without any excuse shown therefor, that on a former trial the brother had stated he received money with which to purchase the note and mortgage from a certain person who was understood by the parties at the trial to be the old school-mate referred to, and then introduce the latter’s deposition to contradict him.In an action against a sheriff for conversion of goods, where plaintiff testified that she gave $785 for certain goods, depending largely on the vendor’s word as to their value, and another witness testified that the goods were worth about $800, while the defendant testified that he obtained $378.40, the best price possible for the goods at sheriff’s sale, a verdict for $975, including interest from time of conversion, will not be set aside as excessive.Where it appears that the verdict in an action of replevin was for damages only, it is sufficient without being in the alternative for a return of the property or for the value thereof in case a delivery cannot be had, when the point was not raised in the court below.
relation:
McGraw v. Franklin, 2 Wash. 17 (1891)
relation:
25 P. 911
rights:
These materials are public records. Please see Washington State Court Rules: General Rules 31 for details https://www.courts.wa.gov/court_rules/pdf/GR/GA_GR_31_00_00.pdf