Rubin v. Lucerne & Aurelia Crown Railway Co.

Mount, J. This action was brought to recover upon three causes of action: first, for an alleged balance of $1,100 for services rendered by the plaintiff to the defendant corporation from January 1, 1912, until January 14, 1913, at an agreed salary of $150 per month; second, for the alleged use of a team of horses at $50 per month for the same period; and third, for supplies furnished to the defendant of the alleged value of $100.07. The answer denied that there was any balance due the plaintiff, and alleged a counterclaim of $2,500 for defective work done by the plaintiff for the defendant. The case was tried to the court without a jury. Findings were made in favor of the plaintiff for $878.75 on the first cause of action, $451.29 upon the second cause of [199] action, and $18.45 on the third cause of action. The court also found that the defendant was damaged in the sum of $550 on account of improper riprapping done by the plaintiff for the defendant, but further found that this claim for damage was barred by Rem. & Bal. Code, § 159 (P. C. 81 §63). The defendant has appealed, making two contentions: First, that the evidence was insufficient to show a contract for $150 per month for the plaintiff and $50 per month for the plaintiff’s team of horses; and second, that the court erred in finding that the counterclaim of the defendant was barred' by the statute of limitations. The main issue tried was whether the defendant agreed to employ the plaintiff for the sum of $150 per month for himself and $50 per month for his team of horses. There was direct and positive testimony that this was the contract. The general manager of the defendant denied that any such contract was entered into. It was, therefore, a question of fact where the evidence was contradictory. After a careful reading of the abstract, we are not convinced that the trial court erroneously found upon this question. This court has repeatedly held that, where the trial court hears the testimony, sees the witnesses, and takes into consideration their credibility and the circumstances surrounding the transaction, we will not reverse the judgment unless we are satisfied that the trial court was wrong in its findings upon such questions. Coates v. Teabo, 44 Wash. 271, 87 Pac. 355; Sorrill v. McGougan, 44 Wash. 558, 87 Pac. 825; Carr v. Cohn, 44 Wash. 586, 87 Pac. 926. Upon the second point, it is strenuously argued by the appellant that the court erred in finding that the counterclaim of the defendant was barred by the statute of limitations. The record shows that the plaintiff performed some riprap work for the defendant in the years 1909 and 1910, and that his services for this work had been paid for. The contract upon which the plaintiff based this action was entered into in January, 1912. It was an entirely different [200] employment from that when the riprap work was done. This action was brought in April, 1914, and thereafter the defendant set up the counterclaim. If we were to hold that a counterclaim for defective work may be set up against an action for the price of the work, and that the claim for defective work would not be barred until the original claim was barred under the statute, still that holding would not avail the appellant here, because the counterclaim here attempted to be set up does not arise out of the claim upon which the plaintiff is now suing. The plaintiff’s cause of action is based upon a contract which was entered into in January, 1912, for a salary of $150 per month. The contract upon which the counterclaim is based is one that was entered into in 1909 and 1910, and was fully completed and paid for. So it is apparent that this counterclaim is based upon another transaction, and the only connection between these two transactions is that the parties are the same; but it is upon another and entirely different contract. It seems plain, therefore, that even if the defendant had a cause of action against the plaintiff for improper work done in the year 1910, that claim cannot be offset against a claim after the statute of limitations has run against it. That, as we understand it, is what the trial court held. The judgment appealed from is therefore affirmed. Mokkis, C. J., Chadwick, and Holcomb, JJ., concur.