« ΠροηγούμενηΣυνέχεια »
in the case of Burchard v. Burchard, a di- how and when you got through. How are vorce suit, should be modified so that Clinton you getting along? Are they homesick? I A. Burchard could take the children men- trust you will be kind enough to let them tioned in the decree for a time, and that the come back soon to see us. You must know plaintiff should have the children for a by this time that all the letters that have while, and that they should be taken back been written to you from this place are false; and forth between the petitioner and re- not one word of truth in them. The low-down spondent as could be amicably agreed upon; conspirators have all left this place, as I supdid not think that it was to be continual; pose you know very well. They did not have that the respondent was to have the absolute the cheek to face the public here after doing custody and control of said children; that this cruel deed. I could not send the little he intended to present the said stipulation girls' clothes with them, for you know we to the court, but the matter was overlooked didn't have much time to get them ready, in some manner, until it was lost; that Mrs.
and it was not a very pleasant task for us; Ackley was very much excited during the but we will have them all saved for them conference, so much so that she fainted, and when they come back to see us. Please that, after recovering, she consented to let write, and tell me who takes care of them, the children go in accordance with the stipu- and whether they go to school or not. Tell lation concerning which he had before testi- the little orphans that I would like to come fied. He, however, admitted, on cross-exam- and stay with thenı, but that is impossible. ination, that he had stated to Mr. Stewart, With this I close, hoping to hear from you one of Burchard's attorneys, on May 20,
With great respect, H. C. Ackley." 1894, in the city of Tacoma, that he never The witness also admitted that he had writwas more surprised in his life than when he ten a letter to Pearl Burchard, the daughter heard tbat Mrs. Ackley had stolen the chil- of respondent, in August, 1893, about the dren, and thought that she must be crazy children. The letter was as follows: "Ellensto think she had any right to the chil- burg, Wash. Aug. 22, 1893. Miss Pearl dren. This testimony is, of course, in flat Burchard, Ainsley, Wash.:-Please allow me contradiction of the testimony in chief that to introduce myself as H. C. Ackley, your the custody of the children given to Burchard stepmother's husband. Of course, you know was only a temporary custody, and renders very well why I ask to correspond with you. the testimony of Attorney Pruyn practically We would like to hear from little darling useless, except to the uncontradicted fact babies, and I most sincerely believe you will that a stipulation had been drawn up, signed, write to me in regard to them. Now, Pearl, and executed, and that he had intended to neither Alice or her mother know that I present the same to the vuurt. The testi
have written to you, and if you wish I will mony of Mrs. Ackley is to the effect that the not let them know anything about it. If you stipulation provided only for the temporary will kindly answer this, I will write more the custody of the children, and the same is next time. If we ever become acquainted, substantially the testimony of H. C. Ackley, you will find me a true friend to all who her husband; while the testimony of the treat me as such. So please answer this little respondent is that he paid these attorneys note, and oblige, yours, very respectfully, H. this fee of $40, not for the purpose of obtain- C. Ackley." It will be observed that the leting a temporary control of the children, for ter to Burchard does not indicate that the that was not the object of his visit to Ellens- children are to return permanently to their burgh, but for the purpose of obtaining a mother, but is a request that they may come permanent modification of the decree in the
back on a visit, when he promised to have divorce suit, to the end that the care and their clothes all in readiness for them; and control and custody of the children should be the letter of August 22, 1893, directed to awarded to him, instead of to the appellant; Miss Pearl Burchard, is written nearly two that such were the provisions of the stipula- months after the time which the witness tion; and that, relying upon the fidelity of
swears was the time at which the children the attorneys thus employed and paid, he were to be returned, viz. July 4, 1893; and presumed that the same would be properly not a word is said concerning their not haventered in the court by them, as under the ing returned, or asking that they be returned. contract of their employment they were to Considering the testimony as a whole, we pay all the court fees; and that he never are of the opinion that the stipulation proknew that the appellant made any claim to vided for a modification of the judgment as the possession or control of these children contended for by the respondent, and withuntil the following October, when she ap- out any reflection upon the character of the peared, and demanded their possession from mother,-for there is no proof in this case his daughter. The testimony of H. C. Ack- regarding her reputation one way or the ley is disputed by his own letters. One of other,-but from the fact that she had a right these, written to respondent May 7, 1893, is to stipulate that the decree should be modias follows: "C. A. Burchard, Esq., Ainsley, fied, and that we believe the testimony shows Wash.-Dear Sir: I am very anxious to hear that such stipulation was executed, the fa. from you in regard to the little girls. I be- ther was in the rightful possession of the chil. lieve you will be kind enough to let me know dren; and, that being the case, the writ of habeas corpus would not lie. The judgment and conditions: You to construct thereon, of the court will therefore be affirmed.
under my supervision and subject to my
approval, a one-story brick building, conHOYT, C. J., and SCOTT, GORDON, and formable to the ordinances of said city; and, ANDERS, JJ., concur.
in addition thereto, the side nearest the depot to be at least twenty inches in thick.
ness, the rear wall to be at least twelve inch(11 Wash. 120)
es, and the front wall to be at least twenty KREMER et al. v. WALTON et al. inches, said front wall to be built of or faced (Supreme Court of Washington. Feb. 8, 1895.)
with pressed brick of first-class quality, so MECHANICS' LIENS — BUILDING ON LEASED LAND.
as to give the same a first-class and finished Where a contract to lease provides that
appearance, it being understood that the the lessee shall erect a building on the prem- northeast wall, or that furthest away from ises, the lessor agreeing to pay the costs there- the depot, shall be arranged by a party-wall of by permitting the lessee to retain the rents,
contract between myself and the owner of the lessee erects the building as the agent of the lessor, so as to render mechanics' liens a charge
the building you are now occupying. This on the interest of the lessor in the land.
contract shall be so as to give me the right Appeal from superior court, Yakima coun
to insert joist into said wall, and to make ty; Carroll B. Graves, Judge.
me owner of one-half of his wall for the Action by Scott Kremer and others against
entire height, so that, in the event of my W. Walton and others to enforce mechanics'
wanting to add an additional story (which liens. From a judgment refusing to enforce
is the object of having the twenty-inch wall the liens, plaintiffs and defendants Leander
at the side and front of the building hereby Smith and another appeal. Reversed.
contemplated), I will have the benefit by
this party-wall contract of the wall of his Frank H. Rudkin, Jones & Newman, and
second story when putting up the second Mackinnon & Murane, for appellants. Whit
story upon the building above mentioned. son & Parker and D. H. Carey, for respond- I would want the work to be first class in ents.
every particular, and well finished, but am
willing that you should arrange the doors HOYT, C. J. This action was brought to and windows at front and rear in such a foreclose the liens of certain mechanics and way as to be of the utmost convenience to material men who had performed labor and yourself. It is understood in this arrangefurnished material in the erection of a certain ment that the building which is to be conbrick building upon property which at the time structed shall not exceed in value the sum belonged to J. M. Ashton. The work was done of $1,500 when fully finished, ready for your and materials furnished at the instanceof one fixtures and furnishings. I am further will0. W. Johnson. His relations to the property ing that the cost of this building, when paid and to Ashton, the owner, were evidenced by you, shall be repaid by me to you by by certain correspondence by mail and tele- applying your rental against the cost of the graph which had been had between him and
same upon the following basis, to wit: The said Ashton. In his testimony upon the trial, rental to be $25 per month, payable in adsaid Ashton made it appear that he had no vance, during the first year, at the end of knowledge of the fact that said Johnson had that time we to agree upon a proper rental entered upon the erection of the building for the following year; and, in the event of until after the labor and materials for which a disagreement, each to select a man; and, the liens were claimed had been furnished. in the event of their disagreement, the two Such testimony is conclusive, so far as the so selected to select a third, the decision of understanding of said Ashton was concern- any two of the men selected to be binding ed, but can have little weight in determin
upon us; their decision, in the case of our ing the contract relations between him and disagreement as aforesaid, to fix the next or said Johnson, for the reason that such rela- second year, at the end of which time we tions must be determined by the construc- are to fix the rental for the third year, and tion of the correspondence above referred so on for the fourth year; our being unable to, regardless of what may have been the to agree, the rental to be fixed by disinterintention of the owner. From such corres- ested parties, to be selected as above menpondence we are forced to the conclusion tioned. It is understood that you are to that said Johnson and those dealing with ascertain the cost of the building contemhim had a right to assume that said Ash- plated, and let me know without delay; also, ton had consented to the erection of the time within which same can be completed, building by said Johnson, in pursuance of after which we are to enter into a perma. the terms of a letter written by said Ashton nent agreement and lease on the line above to said Johnson, which was in substantially indicated. This letter to be ineffectual until the following form: “Dear Sir: Referring such cost, etc., is arranged. Yours very to our conversation here of this date, I I am truly, J. M. Ashton.” Hence it is to such willing to make you a lease of my lot ad- letter that we must look in determining the joining the premises now occupied by you status existing between said Ashton and said at North Yakima upon the following terms Johnson; and it is a matter of no signifi
cance whether it be considered as in itself | growing out of its erection. This seems to amounting to a lease of the premises, or as be the reasonable construction of the lana contract for a lease, since the rights of a guage of the agreement, and also consists lien claimant would be the same whether with authority. See Otis v. Dodd, 90 N. the property had been actually leased upon Y. 336. The judgment will be reversed, and certain conditions, or had been taken posses- the cause remanded, with instructions to ension of by virtue of a contract for a lease ter a decree subjecting the property to the with like conditions. In either case the re- liens, and ordering a sale thereof to satisfy lation of landlord and tenant would exist. the same. It follows from these facts and from the decisions of this court that, if the building was
ANDERS, DUNBAR, and GORDON, JJ., to be erected by the lessee himself, his interest as such lessee would be all that could be subjected to liens for work and materials
(11 Wash. 124) furnished for said building. See Z. C. Miles
CADY v. CASE et al. Co. v. Gordon, 8 Wash. 442, 36 Pac. 265. On the other hand, if, by the terms of the lease,
(Supreme Court of Washington. Feb. 8,
1895.) the building was to be erected and paid for
VERIFICATION OF PLEADING- TENDER-JUDICIAL by the lessor, he would be the one who was
NOTICE. erecting, even although the lessee was to
1. Under Code Proc. $ 203, providing that have the direction and control of the erec
every pleading shall be verified by the party, his tion. In our opinion, the terms and condi. agent or attorney, to the effect that he believes tions of the lease were such that it must be
it to be true, a verification, in the form: "C., held that the building was to be erected by plaintiff above named; that he has read the
being duly sworn, deposes and says he is the the lessor. It is true that, by its terms, the foregoing complaint, and knows the contents building was to be erected and paid for by thereof; that the statements therein contained the lessee in the first instance; but the les
are true, as he verily believes,"'-is sufficient.
2. A tender of bank checks payable in 60 sor was to repay to the lessee the cost there
and 90 days is not a tender of payment. of, and for this reason it must be held that 3. The court will not take judicial notice he assumed the same responsibility that he
of a custom requiring plaintiff, as an employé would if he had let a contract to a stranger
of defendant, to accept goods from defendant's
store in payment of wages. for the erection of the building, under condi. tions which required him to fully pay the
Appeal from superior court, Chehalis councost thereof before having the right to de
ty; Mason Irwin, Judge. mand any payment from the owner. The
Action by W. T. Cady against Case, Hulfact that the whole building was to be erect
ing & Co. to foreclose a lien on shingles, and ed and paid for before any payments should
for an injunction. From an order granting be made by the owner would have no effect
a temporary injunction, defendants appeal. upon liens for labor and material furnished
Affirmed. to the contractor. The responsibility of the Geo. D. Schofield, for appellants. Austin E. owner would be the same as under an or- Griffiths, for respondent. dinary contract which provided for payment by the owner to the contractor from time to DUNBAR, J. Plaintiff in the court below time as the work progressed.
brought his action to foreclose a lien on It follows that if the terms of the contract shingles, and as a basis for injunctive rebetween the lessor and the lessee had been lief pendente lite averred in his complaint that the lessee should erect the building, that the debt was due, the financial irre. and upon its erection should be entitled to sponsibility and insolvency of the defenddemand and receive of the lessor the cost of ants, and that the only security for said such erection, the interest of the lessor claim was the lien upon said shingles, which would be subject to liens growing out of the defendants were threatening to and were erection of the building; and the fact that, about to remove and dispose of, thereby enunder the terms of this agreement, the dangering plaintiff's security. Defendants money was to be paid by the lessor by the appeared, and resisted the application by afretention of rents by the lessee would not fidavits denying the allegations of the comchange the rights of the parties. Under the plaint; and the court, having considered the terms of the agreement, the cost of the complaint and the counter affidavits thereto, building was to fall upon the lessor to the granted a temporary injunction, from which same extent, in the end, as it would have order this appeal is prosecuted. done bad he been called upon to pay the It was contended, in the first place, that entire cost of such erection wben the build- the complaint was not sufficient in law to ing was finished. Under our construction sustain temporary injunction; second, of this contract of lease, it included an that the verification was not sufficient; and, ågreement between the lessor and lessee third, that, the material allegations of the that the latter should erect for the former complaint having been denied, a temporary the building in question, and that, for that injunction should not have issued. We think reason, the interest of the lessor, as well the complaint was amply sufficient to sustain as that of the lessee, was subject to liens an order for a temporary injunction, and we
do not think there is any force in the objec- , the judgment, in the absence of evidence of tion that the affidavit was not sufficient. sufficient other property belonging to the com
munity to satisfy the claim. There is no distinction made in law between the verification of this pleading and that of Appeal from superior court, Lewis county; any other pleading in a case. The verifica
W. W. Langhorne, Judge. tion in this case is as follows: “W. T. Cady,
Action by John Klosterman, doing busibeing duly sworn, deposes and says he is
ness as Klosterman & Co., against T. S. Harthe plaintiff above named; that he has read rington and wife, to set aside a deed. Judg. the foregoing complaint, and knows the con- ment for plaintiff, and defendants appeal. tents thereof; that the statements therein Affirmed. contained are true, as he verily believes." Herren & Hubbell, for appellants. Rey. Section 203 of the Code of Procedure pro- nolds & Stewart, for respondent. vides that "every pleading shall be subscribed by a party or his attorney and, except a HOYT, C. J. This action was brought to demurrer, shall also be verified by the party, set aside a deed made by the defendant T. his agent or attorney, to the effect that he S. Harrington, to his wife, Martha E. Harbelieves it to be true.” This pleading comes rington, the other defendant. This deed was within the rule prescribed, and is, we think, made on the 16th day of October, 1891. It amply sufficient. A more difficult question appears from the findings of fact that prior is presented concerning the answer of the to said 16th day of October, 1891, the de. defendants. The amount sued for, how. fendant T. S. Harrington was indebted to ever, is not disputed in the answer; neither the plaintiff in the sum of $210; that an acis the right to the lien upon the shingles de tion was brought thereon against the said nied nor disputed by the counter affidavits; T. S. Harrington in 1892, and in 1893 judgand we think, under the circumstances of ment for such indebtedness and interest this particular case, that the judge below thereon was duly rendered; that thereafter was justified in issuing the restraining order execution was issued to the sheriff to col. to preserve and make efficient tbe lien lect the same, and was returned unsatisfied, which rightly attached to the claim of re- for want of property out of which to make spondent, and to prevent the destruction of the money. It further appeared that such such lien. So far as the payment of respond- indebtedness was for goods used in the ent's claims are concerned, it was no tender | hotel business conducted by said T. S. Harof payment to tender checks on the First rington and his wife, Martha E. Harrington. National Bank of Montesano, or any other | The superior court found that the convey. bank, due in 60 and 90 days. Neither will ance was in fraud of the rights of the plainthis court take notice of a custom, which is tiff as a creditor of the community, and made pleaded by the appellants here, to the effect an order that the execution issued upon such that laborers in such cases are under obli- judgment should be satisfied out of the propgations to and do take up a portion of their erty conveyed by such deed. From this de wages in goods furnished by appellants' cree defendants have appealed, and urge store. When the work was completed, the here, as reasons for its reversal, the alleged respondent was entitled to receive his money facts that it was not made to appear that the therefor, and to recelve it in the legal tender indebtedness was incurred prior to the date of the country. The debt in this case is not of the execution of the deed, and that it disputed. The appellants, according to their was made to appear that the deed was not a own affidavits, are able to pay, and all the voluntary one, but was made in payment of damages which they claim would be im- certain indebtedness of the community to posed upon them by the issuance of this re- the wife. It is also urged that it was shown straining order could be averted by the pay- that the defendant T. S. Harrington had ment of this honest dent. The judgment other property out of which the execution will therefore be atbrmed.
could have been satisfied.
If we could consider the testimony which HOYT, C. J., and SCOTT, ANDERS, and is set out in the statement of facts as GORDON, JJ., concur.
the defendants do, some important questions of law would be presented for our considera
tion. But, whatever might have been shown (11 Vash. 138)
by the statement of facts if settled in acKLOSTERMAN V. HARRINGTON et ux.
cordance with the contention of the defend
ants, the facts shown by the statement ac(Supreme Court of Washington. Feb. 8, 1895.)
tually settled, which are all that we can con.
sider, fail entirely to establish the defendFRAUDULENT CONVEYANCES-COMMUNITY PROPERTY-CONSIDERATION.
ants' contention. As we have before stated, Where execution on a judgment in favor
it was found by the court that the indebted. of a creditor of the community estate of a hus- ness was incurred before the date of the band and wife was returned unsatisfied, a deed deed, and such finding was supported by the to the wife of land formerly community prop
direct testimony of the plaintiff, and in no erty, made without consideration, and after the debt of such creditor accrued, will be set aside, manner contradicted by anything which apand the land subjected to the satisfaction of pears in the statement of facts. It did ap
against Nellie Blanchard for larceny. Judg. ment for defendant, and the state appeals. Reversed.
John F. Miller, Pros. Atty., and A. G. McBride, for the State.
pear by such statement that the defendant T. S. Harrington testified that his wife had received certain moneys from a relative in Utah; that the same had been used by the community; and that the community had never repaid the amount. But it was not made to appear that, at the time the deed was executed, it was understood by both or even one of the parties thereto that it was to be in satisfaction of the indebtedness of the community to the wife. On the contrary, it appeared that it was made for an entirely different reason. It further appeared that no consideration passed at the time of its execution. We must therefore agree with the conclusion of the lower court that it was a voluntary conveyance, and could have no effect as against creditors wbo, at the time of its execution, had claims against the community, unless there was sufficient property retained by the community to satisfy such claims. As to the amount of property retained by the community, the proofs fail to show that there was anything which could be reached to satisfy the judg. ment; and, in view of the fact that an execution had been issued and returned unsatisfied for want of property upon which to levy, it must be presumed, in the absence of express proof to the contrary, that the community had no property with which to satisfy the judgment. Under our statute, the conveyance by the husband to the wife had the effect of changing its community character to that of separate property of the wife. Hence it was necessary that the deed should be set aside in order that purchasers at a sale under an execution, which only bound community property, should be informed as to the state of the title.
The decree entered is somewhat unusual, but no objection on that account was raised in the court below, nor has it been suggested here; and as we find nothing therein, nor in the proceedings upon which it is founded, which could affect adversely the rights of the appellants, such decree will be in all things affirmed.
ANDERS, J. The information in this case charged that “she, the said Nellie Blanchard, in King county, state of Washington, on the 19th day of March, 1894, three hundred and ten (310) dollars, lawful money of the United States, the money and property of Robert De Lancy, unlawfully, willfully and feloniously did steal, take, and carry away.” To this charge a plea of not guilty was entered. The cause came on regularly for trial, and, after the jury was impaneled and sworn, counsel for the defendant moved the court for an order excluding all testimony, upon the grounds "that the information is not sufficiently specific, and does not state facts sufficient to constitute a cause of action.” The motion was granted, and judgment entered conformably thereto, and the state, by its counsel, appealed.
Our statute provides that "in an indictment or information for larceny or embez. zlement of money
it is sufficient to allege the larceny or embezzlement to be of money, without specifying the coin, number, denomination, or kind thereof,” Code Proc. $ 1253. This statute, by its terms, renders a particular description unnecessary when the property alleged to have been stolen is money. But, of course, the thing stolen, whatever it may be, must be alleged to have some value, for otherwise it would not be a subject of larceny at all. And it is stated in the brief of counsel for the appellant that the learned trial judge held the information bad because, in his opinion, it did not allege the value of the $310 therein mentioned. If such was the fact, the court was in error. It seems plain to us that the words “lawful money of the United States” denote value, and that the designation of the denomination, as dollars, is itself a statement of value. If a lawful dollar is not of the value of a dollar, then we have no means whatever of determining the value of money. In our opinion, if the information had charged that the larceny was committed by stealing $310, of the value of $310, it would not have been any more specific and certain as to value than it was as filed, as the phrase "of the value of three hundred and ten dollars” would have been mere surplusage, expressive of nothing not already clearly stated. In the case of State v. King, 37 La. Ann. 91, where the charge was that the accused “feloniously did steal, take, and carry away certain money, to wit, the sum of ten dollars, of the goods and money of one John Losch," the court said:
SCOTT, DUNBAR, ANDERS, and GORDON, JJ., concur.
(11 Wash, 116)
STATE Y. BLANCHARD. (Supreme Court of Washington. Feb. 8,
1895.) LARCEXY_DESCRIPTION OF MONEY STOLEN.
Under Code Proc. $ 1253, providing that in an information for larceny of money it is sufficient to allege the larceny to be of money, without specifying the coin, number, denomina tion, or kind thereof, an information charging larceny of a certain number of dollars, lawful money of the United States," is sufficient.
Appeal from superior court, King county; T. J. Humes, Judge.
Prosecution by the state of Washington