
    [No. 6367.
    Decided April 10, 1907.]
    P. C. Kauffman, Respondent, v. Alexander Baillie et al., as Executors of the Estate of Robert Wingate, Deceased, et al., Appellants.
      
    
    Witnesses — Competency — Transactions With Deceased. A plaintiff claiming under a contract with a person since deceased may testify as to transactions between himself and a third person and as to services performed by him which appear to be the consideration for the contract, and the same does not fall within the statute prohibiting testimony of a transaction had with, or statements made to or by, a deceased person.
    Contracts — Delivery—Execution — Evidence —.Sufficiency. In an action upon a contract signed by and in the handwriting of a person since deceased, the contract is admissible in evidence where it shows on its face that it was for the benefit of plaintiff who had had possession of it for a long time and ever since its date, execution and delivery being presumed from such facts.
    Brokers — Contract for Profits — Time for Performance. Where lots are purchased for speculation, the vendee agreeing to pay a broker one-third of the net profits when the lots are sold, a reasonable time for sale is intended, and upon death of the vendee and repudiation of the contract by his executor, the broker may recover of the estafe one-third of the net value of the land after deducting all expenses.
    Appeal from a judgment of the superior court for Pierce county, Huston, J., entered June 9, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to establish and enforce an interest in real property.
    Affirmed.
    
      Fogg <$• Fogg, for appellants.
    
      Ellis (§■ Fletcher, for respondent.
    
      
      Reported in 89 Pac. 548.
    
   Crow, J.

Robert Wingate died on March 2, 1905. About December .1, 1900, contemplating the purchase of certain lots in the city of Tacoma, then owned by one Charles K. Zug, he executed the following instrument:

“Office Robert. Wingate.

“Tacoma, Washington, Deer. 1st, 1900.

“Know all men by these presents that I Robert Win-gate of Tacoma Washington so soon as I acquire title from Charles K. Zug of Philadelphia for Lots 7, 8, 9, 10, 11 & 12 inclusive in Block 2100 Tacoma Land Co’s 1st Addition to Tacoma, Wash., which I expect to do before January 1901. Then and in that event I agree to pay to P. C. Kauffman personally one-third (1-3) of the profits arising from sale of above described lots when I sell the same, said profits will be arrived at by deducting price paid for lots together with interest computed at 8 per ct. per annum on money invested between time of purchase and time of sale. P. C. Kauffman is not interested in purchase, but will participate to the extent of one-third in net profit arising from sale, when sold, the basis for this agreement is upon presumption that I acquire title to lots above described. Robert Wingate.”

About December 19, 1900, Mr. Wingate received a deed for the lots and the title has since been in him or his estate. P. C. Kauffman, the plaintiff, asserting an interest in the lots, presented a claim to Wingate’s estate, which was rejected by his executors. Thereupon he as plaintiff brought this action against the defendants, as the executor, heirs at law, and legatees of Robert Wingate, deceased, to establish and enforce his alleged interest.

On the trial, it was admitted that the instrument above set forth and then produced by Mr. Kauffman was in the handwriting of the decedent and signed by him; that an envelope in which it was inclosed was addressed to Mr. Kauffman, also in the decedent’s handwriting; that Mr. Wingate had received from Mr. Zug a deed for the lots, dated December 19, 1900, reciting a consideration of $5,800; that this deed, which at the trial was produced by the defendants, had been recorded, and that Robert Wingate had kept an itemized account with the lots, charging to them all disbursements for purchase money, taxes, interest, etc., and crediting them with a small amount of ground rents received. The written instrument, envelope, and deed were admitted in evidence over the defendants’ objections. One Berry, a business man of Tacoma, testified that, about October, 1903, Robert Wingate told him he wanted to sell the lots, as he wished “to get settled up with an interested party up in the bank”; that this conversation took place in the presence of Wingate’s daughter, on Pacific avenue, at a point from which the Fidelity bank was up the hill; that no other bank was up the hill from that point; that the plaintiff Kauffman was an officer of the Fidelity bank, and employed therein, and that Berry understood Wingate to refer to some one in that bank, although no name was mentioned. Evidence was also admitted to show the value of the lots. The plaintiff, Kauffman, over strenuous objections of the defendants, was permitted to testify that the written instrument and envelope above mentioned had been in his possession at all times since December 1, 1900; that immediately after they came into his possession he conducted negotiations with Mr. Zug for the purchase of the lots for Mr. Wingate; that he sent numerous letters and telegrams, to Zug, and made a trip to Philadelphia, Pennsylvania, Mr. Zug’s home, to see him personally; that he finally succeeded in getting the purchase price fixed at $5,800; that a deed was executed by Zug, conveying the lots to Wingate, being the deed produced at the trial by the defendants; that Zug was Kauffman’s first cousin; that their relations were very close and intimate, and that Kauffman therefore had a better chance than any other person to secure the property. In answer to a question propounded by defendants’ counsel, Mr. Kauffman, on cross-examination, further stated that the written instrument and envelope were delivered to him by Mr. Wingate. To this statement the defendants at the time objected, and moved that it be stricken.

The theory of this action is that, in consideration of Kauffman’s contemplated services in securing and purchasing the lots, Mr. Wingate had executed and delivered to him the written instrument above set forth, and that he, as an agreed compensation for his services, is entitled to one-third of the net value of the lots, after deducting the original purchase price, together with other disbursements such as taxes and interest. The trial court made findings in favor of Kauffman, estimating his interest on this basis at $9,913.70. From a money judgment in his favor for that amount, the defendants have appealed.

The appellants do not object to the form of the judgment. The parties consented that, if the respondent had any interest, it might be ascertained, and judgment entered for its cash value. The appellants, however, insist that the respondent has no interest, and that he is not entitled to any relief, either legal or equitable.

The appellants contend that the trial court erred in overruling their objection to the testimony of the respondent, Kauffman, which they insist was inadmissible, he being disqualified under Bal. Code, § 5991 (P. C. § 937), reading as follows:

“No person offered as a witness shall be excluded from giving evidence by reason of his interest in the event of the action, as a party thereto or otherwise; but such interest may be shown to affect his credibility: Provided, however, That in an action or proceeding where the adverse party sues or defends as executor, administrator, or legal representative of any deceased person, or as deriving right or title by, through, or from any deceased person, or as the guardian or conservator of the estate of any insane person, or of any minor under the age of fourteen years, then a party in interest or to the record shall not be admitted to testify in his own behalf as to any transaction had by him with or any statement made to him by any such deceased or insane person, or by any such minor under the age of fourteen years. . . . ”

Except as to Kauffman’s statement, made on cross-examination, that the agreement and envelope were delivered to him by Mr. Wingate, which we will not consider, the appellants are mistaken when they insist that he testified to any transaction had by him with, or any statement made to him by, the decedent. He Avas cautioned by his attorney to eliminate from his testimony any conversations or transactions Avith Mr. Wingate, and carefully observed their admonition. The statute does not disqualify him from being a Avitness. It only prohibits him from telling of any transactions had by him Avith, or any statements made to him by, the decedent. His testimony Avas only as to transactions between himself and Mr. Zug, a third party,- all of • Avhich occurred in the absence of the decedent, and Avas offered to shoAV the services performed by respondent in securing and purchasing the property. Mr. Wingate, if living, could not testify as to these transactions, nor Avould he be in any position to deny a single statement made by the respondent, haAÚng no personal knoAAdedge thereof. With the exception of the one statement made on cross-examination, all of respondent’s evidence Avas admissible. Ah How v. Furth, 13 Wash. 550, 43 Pac. 639; Marvin v. Yates, 26 Wash. 50, 66 Pac. 131; Belden v. Scott, 65 Wis. 425, 27 N. W. 356.

The case of Marvin v. Yates bears -a marked resemblance to this, the principal difference being that an oral contract was there relied upon, not being evidenced by any written instrument. The plaintiff, Marvin, was permitted to testify to acts done and sei'vices performed by him in the course of his employment, but in the absence of the deceased. In passing upon his competency and the admissibility of his evidence, this court said:

“It is assigned as error that the court permitted respondent to testify in violation of the statutory rule prohibiting a claimant from testifying concerning transactions had by him with, or statements made to him by, the deceased person. We think the court did not permit a transgression of the rule. Respondent was instructed by counsel to exclude from his answers anything concerning personal transactions with Woodward, or any conversations between them about such transactions. This, we think, respondent did. He testified that he looked at certain lots when he was alone, stating the time when he saw them, their value, and that deeds were afterward made for the property; but he did not say anything at all about the conversations or transactions between himself and Woodward. Considering the difficulties attending the proofs in this class of cases, and the usual temptation to transgress upon the statute, we think the respondent kept well within the rule as interpreted by this court in Ah How v. Furth, 13 Wash. 550, 43 Pac. 639.”

In Ah How v. Furth, supra, the contract of employment having been proven, the plaintiff was permitted to detail the work he had done and the services he had performed in the course of his employment, eliminating from his testimony all personal transactions and communications between himself and the deceased. Referring to his evidence, this court said:

“The testimony of respondent that he worked at the house of the intestate and the character of the work performed by him, was not testimony in relation to a ‘transaction had by him with, or any statement made to him by,’ such intestate. Such testimony related solely to acts of the witness alone, and was, we think, entirely competent.”

The appellants cite and rely upon the cases of Spencer v. Terrel, 17 Wash. 514, 50 Pac. 468; Kline v. Stein, 30 Wash. 189, 70 Pac. 235, and Bay View Brewing Co. v. Grubb, 31 Wash. 34, 71 Pac. 553, decided by this court, all of which can be easily distinguished. In Spencer v. Terrel, there was no evidence whatever of the trust alleged by the plaintiff. Here there is documentary evidence in the handwriting of the decedent, corroborated by his statement, to the witness Berry, which is not contradicted by the decedent’s daughter, who was present. In Kline v. Stem, proof of the purchase of the land by plaintiff rested entirely on his evidence of transactions between himself and the decedent. In Bay View Brewing Co. v. Grubb, the evidence was excluded for the reason that the member of a partnership, with whom the witness had the transaction in issue, was dead and the surviving partner had no personal knowledge thereof.

The deed from Zug to Wingate was properly admitted in evidence. The execution of the written agreement, and the receipt of the deed by Wingate, were both admitted by the answer. The appellants offered no evidence except on the value of the lots. As to all other issues they submitted their case on the evidence admitted on behalf of the respondent. They claim title under the Zug deed, and we fail to understand how Mr. Wingate, if alive, could, in the face of these admissions, deny the deed or its recitals.

The written instrument conceded to be in Wingate’s handwriting was properly admitted. It tended to show the agreement of Wingate, and the interest of the respondent. Appellants contend that its delivery to Kauffman has not been shown by competent evidence. On that issue the undisputed facts raise a presumption' of delivery sufficient to constitute a prima facie case in favor of the respondent. The instrument was written and signed by the decedent. It shows on its face that Kauffman is the person for whose benefit it was drawn. He was the only person to whom, in the course of business, it would ordinarily have been delivered. It had been in his possession for a long period of time, in fact since about the date of its execution. He produced it at the trial. No fact or circumstance tending to question the validity or good faith of his possession has been shown. His possession was evidence of ownership. Under the circumstances it will be presumed that the instrument was executed and delivered to Kauffman on December 1, 1900, the date it bears. Wig-more, Evidence, § 157, subd. 2; Jones, Evidence, §§ 44 and 45; Devlin, Deeds, §§ 178, 294, 295; Rohr v. Alexander, 57 Kan. 381, 46 Pac. 699; People v. Snyder, 41 N. Y. 397; Reed v. Douthit, 62 Ill. 348; Leonard v. Fleming (N. D.), 102 N. W. 308.

Appellants call attention to the words, “I agree to pay to P. C. Kauffman personally one-third of the profits arising from the sale of the above-described lots when I sell the same,” and insist that Kauffman cannot recover as no sale has been made. The contract on its face show's that the lots were to be purchased for sale. In other words, they were a speculation, and were only held for an advance. It w-as intended that, when a sale was made, Kauffman should receive his interest which could be easily ascertained. In such a contract, when no exact time for performance is fixed, a reasonable time is intended. Wingate died before sale was made. The property has multiplied many times in value. The appellants have denied respondent’s interest. They also refuse to sell, and may continue to do so indefinitely, although a handsome profit can now be realized. If their construction of the agreement in this regard be correct, the only course necessary for them to pursue to eliminate respondent’s interest altogether will be to hold the property indefinitely, and to continue refusing to sell. Any such construction does violence to the evident spirit and intent of the agreement, which cannot be misunderstood. Wingate is now dead, and the respondent is compelled to enforce his rights or lose them entirely. .Pie is now asserting them in the only manner available to him, and the appellants, although contesting his interest, consent that the same, if sustained by the court, may be awarded to him in cash. In the light of the facts disclosed by the record, their contention that he is not entitled to recover in the absence of a sale cannot be sustained. Noyes v. Barnard, 63 Fed. 782.

After a careful examination of all the evidence, we conclude that the findings made by the trial court are sustained by its clear preponderance. The contract is in existence and speaks for itself. The respondent has performed the services detailed by him. The evidence of Berry, a disinterested party, is undisputed. The deceased kept a distinct account with these lots, which he must have done in view of Kauffman’s interest. The findings support the final judgment. The trial court has committed no prejudicial error. The judgment is affirmed.

Hadley, C. J., Dunbar., Mount, and Root, JJ., concur.  