« ΠροηγούμενηΣυνέχεια »
e collected by the ad. name. .
agent of Mr. Abel in purchasing certain real, applies to all debts created after the statute estate. Mr. Blattner cashed these notes and took effect. Flood v. Libby, 38 Wash. 366, 80 obtained the money therefor. He did not Pac. 533, 107 Am. St. Rep. 851; In re Heilpurchase the real estate, but held the money bron's Estate, 14 Wash. 536, 45 Pac. 153, 35 in his possession. Thereafter Mr. Blattner L. R. A. 602; Northwestern Mutual Life Ins. lost his life. The money which he had re- Co. v. Chehalis County Bank, 65 Wash. 374, ceived from Mr. Abel had been mingled with 118 Pac. 326; Reitt v. Armour & Co., 79 Wash. his own private funds, and came into the 48, 139 Pac. 633, L. R. A. 1915A, 1201; Gerhands of the administratrix as assets of the man-American State Bank v. Godman, 83 estate. After the death of Mr. Blattner, his Wash, 231, 145 Pac. 221. widow was appointed as administratrix of Section 6158, Rem. & Bal. Code, provides his estate. In March, 1913, Mr. Abel pre- as follows: sented his claim to the administratrix, the “If a policy of insurance is effected by any same was allowed by her, and in January, 1 person on his own life, or on another life in 1914, the claim was approved by the court
favor of a person other than himself having an
insurable interest therein, the lawful beneficiary and became a claim against the estate. thereof. other than himself or his legal repreThereafter payments were made upon the sentatives, shall unless contrary to the terms of claim amounting to $493.77.
the policy, be entitled to its proceeds against the
creditors and representatives of the person efAt the time of his death Mr. Blattner had | fecting the same: and the person to whom a two insurance policies upon his life payable policy of life insurance is made payable may to his estate. These policies amounted to maintain an action thereon in his own $14,258.83. They were collected by the ad.
stratrix. Thereafter, upon an ex parte In the case of Northwestern Mutual Life application of the administratrix, without Ins. Co. v. Chehalis County Bank, supra, it notice to Mr. Abel, the court made an order was contended that this latter statute repealdirecting one half of the insurance money to ed section 569, Rem. & Bal. Code, above quotbe paid to Mrs. Blattner, and the other half ed; but we denied that contention, saying, to Dorothy M. Blattner, the daughter of the that if it was repealed at all it was repealed deceased. Upon the final report of the ad-by implication, and : ministratrix being fled, Mr. Abel objected to "That repeals by implication are not favored the payment of the insurance money to the is the established doctrine in this state, and
that they will not be allowed, unless the will of widow and the daughter of the deceased. Up
the Legislature is so manifest that the statutes on the hearing of these objections the court | cannot be read in pari materia without violence entered the order herein appealed from
to the earlier statutes is a fundamental rule of
construction from which courts are not at libThe principal question presented is wheth
erty to depart." er the proceeds of a life insurance policy payable to the estate of the deceased is exempt
Neither the opinion nor the record in that from the debts of the deceased where, in his
case shows the beneficiary of the insurance lifetime, the property of the deceased would
policy. The question presented in the case not be exempt from the payment of this claim.
at bar was neither decided nor discussed in Many pages of the briefs of the appellant
that case, except in so far as we held that and the respondent are taken up with a dis
section 569 was not repealed by implication cussion whether section 564, Rem. & Bal.
by section 6158. It is apparent from our deCode, is applicable to this case. This section
cision in that case that we regarded these provides that no property shall be exempt
two statutes as being in pari materia, and from execution issued upon a judgment
that they should be construed accordingly. against an attorney or agent on account of
We think it is plain from the provision of any liability incurred by such attorney or
section 6158 quoted, that the Legislature inagent to his client or principal on account of
tended that the proceeds of a life insurance any moneys or other property coming into his
policy should be exempt from creditors of the hands from or belonging to his cļient or prin
estate only when the beneficiary in the policy cipal. But in view of our conclusion upon
is some person other than the insured himanother question which seems to us to con
self or his legal representatives, for it says: trol, we shall not pass upon the applicability
“If a policy of insurance is effected by any
person on his own life, * * the lawful benof that statute to this particular case.
eficiary thereof, other than himself or his legal The appellant relies upon the provision of representatives, shall, unless contrary to the section 569, Rem. & Bal. Code, which pro
terms of the policy, be entitled to its proceeds vides:
against the creditors and representatives of the
person effecting the same. * * "The proceeds or avails of all life and acci
*". dent insurance shall be exempt from all lia
Otherwise, the phrase "other than himself bility for any debt."
or his legal representatives," is entirely It is strenuously argued that because the meaningless, for the statute at section 569 money in question was derived from an in-above quoted provides that the proceeds and surance upon the life of Mr. Blattner, that avails of all life and accident insurance shall under this section it is exempt from the pay-i be exempt from all liability for any debt. ment of Mr. Abel's claim. This statute is a We think it was intended by the later statsweeping statute, and this court has many ute to modify that sweeping provision of the times held that, when considered alone, it former statute to the extent of providing
that if a policy of insurance is effected by any | v. Godman, 83 Wash. 231, 145 Pac. 221. It is person on his own life in favor of himself true the parties to that appeal did not dite or payable to his estate, that in such a case or rely upon the statute now found to be the proceeds are not exempt against the cred-controlling, but the court itself did not OTEIítors and representatives of the person effect-look the statute. On the contrary, the stat. ing the insurance. When these two statutes ute was cited in the opinion and held to bare are construed together in pari materia, we no application. I did not have the priviles think that is clearly the meaning, because of sitting at the hearing in the earlier as the words "other than himself or his legal but I thought then and I think now that : representatives" were used for a purpose, wrong conclusion was reached therein. This and that purpose was to limit the exemption, opinion therefore should do in terms what it as stated.
does in fact, namely, overrule that case, to In the case of German-American State the end that no uncertainty should exist u Bank v. Godman, supra, we held that the to the rule properly to be applied to like proceeds of certain insurance policies pay- cases, able to the estate of the insured and to the
ELLIS, J. I concur with Judge FULLER legal representatives of the insured were not
ΤΟΝ. subject to certain debts. In that case the point now being considered was not raised
(89 Wash or discussed, for in that case we said:
STATE v. LYNN. (No. 12981.) "Although not relied upon by the appellants, it is equally plain that Laws of 1909, p. 556, 8 (Supreme Court of Washington. Feb. 2, 1916.) 36 (Rem, & Bal. Code, 8 6158), have no applica- 1. FALSE PRETENSES 7-ELEMENTS_FALE tion to the facts in the case at bar."
| REPRESENTATIONS OF Fact. The decision in that case was rested prin- A false and fraudulent representation, to cipally upon the provisions of section 569,
e section 569 constitute the crime of larceny by color or aid
of false representation, must be of an existing ar and the court did not attempt to construe the po provisions of section 6158, supra, as affecting [Ed. Note. For other cases, see False Pit that section, because the point was not relied tenses, Cent. Dig. 88 5–12, 25; Dec. Dig. Zij upon. It was held in that case that the 2. FALSE PRETENSES 39 – ELEMENTS words "legal representatives" mean ordina FALSE REPRESENTATIONS OF FACT-BUEDES
OF PROOF. rily executors or administrators. We there
Where it was charged that the accused pro said:
cured the prosecuting witness to invest certain "The law does not differentiate between poli-moneys in a store by the representation that the cies payable to the executors, administrators, or accused had $4,000 which he was going to ipassigns, and policies payable to 'the estate' of vest, it was incumbent on the state to prove that the insured."
he did not in fact have $4,000 at the time be
so represented. This is plainly so, and where a policy is
[Ed. Note.-For other cases, see False Pre made payable to one's estate it is payable tenses, Cent. Dig. $ 54; Dec. Dig. 39.) to his legal representatives. We are there- 13. FALSE PRETENSES 49 – ELEMENTS – fore satisfied that under the provisions of sec- FALSE REPRESENTATIONS OF FACT – Evi. tion 6158 above quoted that it was the inten-| DENCE. tion of the Legislature that the proceeds of
Where the only evidence as to the falsity of
the statement that the accused had $4,000 TIS insurance policies payable to an estate should that not more than $225 worth of goods were be liable to the creditors of the estate. In put into the store, that was insufficient to show order that the proceeds may not be liable to
beyond a reasonable doubt that the representáthe creditors of the estate, the insurance
tion as to the amount of money he had ris
false. must be effected in favor of a beneficiary | [Ed. Note. For other cases, see False Pre other than the insured or his legal representa- tenses, Cent. Dig. $ 62; Dec. Dig. 49.1 tives, for example, the wife, a child or chil. dren, or some other specified person. Where
Department 2. Appeal from Superior the policy is made payable to the insured or
Court, Snohomish County; Guy C. Alston, to his estate, or “his legal representatives,"
"Judge, the proceeds thereof are not exempt, but are
| E. H. Lynn was convicted of grand larceny, available to the creditors of his estate. This ar
This and he appeals. Reversed and remanded, being so, it is plain that the trial court was with directions to dismiss. right in holding that the proceeds of this. Shepard, Burkheimer & Burkheimer, of policy were liable for the debt in question. Seattle, for appellant. 0. T. Webb, Percy The judgment is therefore affirmed. Gardiner, and E. C. Dailey, all of Everett,
for the State. MORRIS, C. J., and CHADWICK, J., concur.
MAIN, J. The defendant in this case is
charged with the crime of grand larceny. FULLERTON, J. While I concur with the Whether by the information it is intended majority in the conclusion reached in this under Rem. & Bal. Code, 2601, to charge cause, I do not think it can be differentiated larceny by "color or aid of any fraudulent or from the case of German-American State Bank / false representation," or larceny by embez
zlement, or both, does not clearly appear. / ration being issued on July 14, 1914. ThereFrom a reading of the state's testimony, and after, and on July 17th, the appellant and the remarks of the trial judge, it would ap- wife turned over to the corporation, in paypear that up to the time when the state rest- ment for stock subscribed for by them, real ed its case, there was an attempt to prove and personal property listed at the value of larceny by embezzlement. When the evidence $4,352.31. On July 20, 1914, Waggett, in in chief for the state was in, the defendant | Seattle, King county, paid to the corporation moved for a directed verdict, claiming that $300 in cash, and turned over a note of the the evidence was insufficient to establish any face value of $500. Thereupon 16 shares of crime, and that the venue was improperly the capital stock of the corporation of the laid in Snohomish county. In denying this par value of $50 per share were issued and motion the trial court required the state to delivered to him. elect whether it would have the cause go to After the store was opened, both Waggett the jury under the claim that the crime was and the appellant worked therein. The busicommitted by false and fraudulent repre
ness was conducted some months, when it besentations, or by embezzlement. The state
came insolvent and a receiver was appointed. concluded to interpret the information as After the appointment of the receiver, Wag. charging the crime of larceny by false and gett filed a verified claim with the receiver in fraudulent representations. Thereupon the which he stated that the $300 was a loan to evidence upon behalf of the defendant was the corporation. Upon the trial Waggett tesintroduced, and the cause was submitted to
tified that there was not placed in the store the jury. A verdict of guilty was returned.
more than $225 worth of merchandise. Motion for a new trial being made and over
The controlling question in this case is ruled, the defendant appeals from the sen
whether the evidence shows that the appeltence and judgment.
lant was guilty of grand larceny committed The facts briefly stated are: On June 18,
by color or aid of any fraudulent or false 1914, and for some time prior thereto, the
representation. It is claimed that the false prosecuting witness, one J. B. Waggett, was
representation consisted in the appellant's operating an automobile truck between Seat
statement that he had $4,000 in cash as the tle, in King county, and Cathcart, in Sno
result of the sale of two stores, when in fact homish county, Wash., with his residence in
he did not have that amount, or any sum in Seattle. On that day the appellant called
excess of $100. upon Waggett for the purpose of engaging
 A false and fraudulent representation, him to haul certain store fixtures from Seattle to Cathcart. Prior to this date the par
under the statute, in order to constitute a
crime, must be of an existing or past fact. ties had no acquaintance. In the course of
2 Bishop, New Criminal Law, $ 415; 1 Mcthe conversation relative to the hauling of the store fixtures, Lynn told Waggett that he
Clain, Criminal Law, $ 678.
 The falsity of a fact past or present bewas going to organize a corporation to con- / duct a grocery business at Cathcart in a cer:
ing one of the elements of the crime, it was tain store building there situated, which he
incumbent on the state to prove that the aphad previously leased, and that the store fix
e pellant did not in fact have $4,000 in cash tures which he was desiring to move were to
at the time it is claimed he so represented. be used in such business. Waggett then told
State v. Hurley, 58 Kan. 668, 50 Pac. 887. the appellant that he, Waggett, also contem
 The articles of incorporation of the plated starting a store at the same place.
Cathcart Grocery & Mercantile Company The question of Waggett taking stock and be
state its objects, among other things, to be, coming interested in the corporation to be or
to conduct a general mercantile business for ganized by the appellant was discussed at
the purpose of purchasing and selling of all that time by the parties. Waggett claims,
kinds of groceries and merchandise, and to and he so testified, that the appellant told
acquire by purchase or otherwise real and him that he had sold two stores in Seattle personal property of every kind and descripfor $4,000, and that if Waggett would invest tion. A number of other purposes are also $800 or $1,000, the appellant would invest set out, such as usually appear in articles of $4,000 in cash in the business enterprise. | incorporation. Waggett gave a somewhat different version, The evidence relied upon to show the falsiwhich it is unnecessary here to detail. ty of the statement as to the $4,000 is that
On June 20th Waggett hauled the fixtures of the complaining witness that not more from Seattle and Cathcart About a week than $225 worth of groceries were put into later Waggett went to Cathcart and began the business. This obviously does not disconstructing partitions in the rear end of the prove the statement attributed to the appelstore building which was to be occupied by lant that he had sold two stores in Seattle, . the business preparatory to moving his fami- and had received therefrom $4,000 in cash, ly therein, which he did on July 8th follow. which he expected to put into the business. ing.
For aught that appears in the evidence, he Articles of incorporation for the Cathcart may have had the $4,000 as it is claimed he Grocery & Mercantile Company were duly said he had. The evidence is doubtless suffiprepared and filed; a certificate of incorpo- cient to cast suspicion upon the truthfulness
of his alleged claim that he had $4,000 in ment of dismissal, plaintiff appeals. Perers cash. But if he is guilty of a crime, all the ed and remanded for new trial. elements of the crime must be established by! Munter &
Munter & Flood, of Spokane, for appellant competent evidence, and the conviction can
Cullen, Lee & Matthews, of Spokane, for re not be sustained, unless the evidence was
spondent such that the jury had a right to find that all the elements of the crime were proven be
MORRIS, C. J. Appeal from a judgment yond a reasonable doubt. It may well be doubted whether the venue
of dismissal based upon the insufficiency of
the complaint. The complaint recited ttat was properly laid in Snohomish county, con
in March, 1909, respondent sold to one Grant struing the information as charging the crime as being committed by color or aid of false
200 acres of land, together with a perpetual and fraudulent representations. But it is
water right to the use of certain water for not necessary to decide this question, since
irrigation purposes during the period from
May 15th to September 1st of each year, iroa the other question discussed is decisive of
canals, ditches, flumes, or pipe lines to le the action. The judgment will be reversed, and the
constructed by respondent, which would de
| liver the water at the highest point of the cause remanded, with directions to dismiss.
granted land ; that the grantee subsequenti MORRIS, C. J., and BAUSMAN, HOL
sold 20 acres of this land to appellant, to COMB, and PARKER, JJ., concur.
gether with a proportionate share of the perpetual water right as specified in the dezi
to Grant; that appellant went into posses (89 Wash. 423)
sion of bis land in 1910, purchased and plant. HUSCHKE V. ARCADIA ORCHARDS CO.
ed a large number of fruit trees, but that (No. 12833.)
respondent failed and neglected to furnish
| water as specified in the Grant deed, and had (Supreme Court of Washington. Jan. 28, 1916.)
so failed up to May 1, 1913; that appellant 1. WATERS AND WATER COURSES 254–IB was unable to procure water elsewhere; add RIGATION WATERSCONTRACT TO FURNISH
that by reason of respondent's failure to TIME OF PERFORMANCE.
Where an irrigation company's deed to comply with the terms of its contract in the lands clearly agreed to supply them with water, furnishing of water he lost many of his fruit but fixed no time within which it was to be trees, and others were greatly damaged. It furnished, the company was under duty to fur
is then alleged that with water the land is nish water within a reasonable time, considering the facts contemplated by the parties when
| worth $400 per acre; without water not to the contract was made.
exceed $85, and appellant's damage was cut(Ed. Note.-For other cases, see Waters and sequently fixed at $6,300, for which fucs Water Courses, Cent Dig. $ 311; Dec. Dig.
ment was demanded. Issues were joipet em 254.]
and a jury impaneled to try the same, wbea 2. DAMAGES 141_PLEADING - COMPLAINT -SUFFICIENCY.
respondent objected to the admission of est Where the complaint of plaintiff, suing for dence upon the ground that the complaint breach of contract, sufficiently stated a con was insufficient. This objection was sus tract, its breach and proximate injury, the com- | tained. and appellant refusing to further plaint was good, although it set out an improp
plead, the cause was dismissed. er measure of damages. [Ed. Note.-For other cases, see Damages,
 No time seems to have been fixed with Cent. Dig. &$ 406,408, 412, 414, 415; Dec. Ďig. in which the water was to be furnished, bat Om 141.)
inasmuch as the deed clearly calls for a sup3. WATERS AND WATER COURSES 263—IB-ply of water, the law fixes the time as a RIGATION WATERS-ACTION FOB BREACH
reasonable time considering the facts within MEASURE OF DAMAGES.
In an action for failure to furnish water | the contemplation of the parties at the time by the grantee of one whose lands defendant the contract was entered into, and wbat had contracted to supply, where the proximate would be a reasonable time would be one of injury was the destruction of a number of fruit
the ultimate facts to be determined. trees and damage to others, the measure of damages was the difference between the value of the  It is apparent that appellant has mis growing trees, had water been furnished accordo conceived the measure of his damages in ing to the contract, and the value of the trees seeking to recover the difference between the without water, limiting the damages to such in. juries only as were occasioned by its lack, since varu
| value of the land with and without water; the proper measure of damages for breach of but this does not call for a dismissal of the contract is the injury proximately resulting. action. It is not essential to the statement
[Ed. Note.-For other cases, see Waters and of a good cause of action that the complaint Water Courses, Cent. Dig. 8 324; Dec. Dig. Om 263.]
should set out a proper measure of damages,
since that is a question of law to be deterDepartment 1. Appeal from Superior mined by the court in instructing the jury Court, Spokane County; E. K. Pendergast, or in the conclusions of law if tried without Judge.
a jury. If the appellant sufficiently stated : Action by Ernst Huschke against the Ar-contract, its breach and proximate injury, be cadia Orchards Company. From a judg- stated a cause of action irrespective of what
Wash.) MARSHALL-WELLS HARDWARE CO. v. TITLE GUARANTY & S. CO. 801
the pleader conceived to be the proper meas- , the plaintiff within a year of the reversal of a Pure of damages. Wetmore v. Porter, 92 N. judgment for him in an action commenced withY. 76; St. Louis S. W. Ry. Co. v. Jenkins
in the time prescribed, since no injunction was
Tissued nor had there been reversal of the ac(Tex. Civ. App.) 89 S. W. 1106; Norton v. tion of the federal court. Kull, 74 Misc. Rep. 476, 132 N. Y. Supp. 387; [Ed. Note. For other cases, see Limitation of Weller V. Missouri Lumber & Mining Co., Actions, Cent. Dig. 88 56-58; Dec. Dig. 13.] 176 Mo. App. 243, 161 S. W. 853; Ara v. 2. LIMITATION OF ACTIONS en 13 - SUIT BY Rutland (Tex. Civ. App.) 172 S. W. 993. CONTRACTOR's SURETY TO RESTRAIN PROSE
CUTION OF CLAIMS - CLAIMANT'S APPEAR The proper measure of damages in the
ANCE-CONDITIONAL PROMISE TO PAY-EQUIbreach of a contract is the proximate injury. TABLE ESTOPPEL. In this case the pleader alleged that proxi The fact that in requesting plaintiff's apmate injury to be the destruction of a num-pearance in such federal court suit defendant
promised to pay its claim as soon as it should be ber of his fruit trees and damage to others.
properly established against the bond did not The measure of damages then would be the create an equitable estoppel of defendant from difference between the value of his growing asserting the statute of limitations in plaintiff's
area subsequent action, since the promise to pay, be
ing conditional, was not within the rule that in sonable time according to the terms of the
order to toll the running of the statute of limi. contract and the value of the trees without tations such promise must be certain, definite, water; bearing in mind, of course, all the and unconditional. elements which enter into the growth of [Ed. Note.-For other cases, see Limitation of fruit trees, and limiting the damages to such
h Actions, Cent. Dig. 88 56-58; Dec. Dig. Om
13.] injuries only as were occasioned by lack of
3. ELECTION OF REMEDIES 7-SUIT BY CONwater. Hanes V. Idaho Irrigation Co., 21
TRACTOR'S SURETY TO RESTRAIN PROSECUIdaho, 512, 122 Pac. 859; 3 Kinney on Irri
TION OF CLAIMS-CLAIMANT'S APPEARANCE. gation and Water Rights, p. 3139.
The fact that plaintiff appeared in such Reversed and remanded for new trial.
federal court suit in order to avoid the issuance of an injunction against it created no ground
for defendant's equitable estoppel in such sub· FULLERTON, MOUNT, ELLIS, and sequent state court action, since, plaintiff not CHADWICK, JJ., concur.
being compelled to enter it, such appearance was voluntary and in connection with plaintiff's
reliance upon establishing the claim in the fed(89 Wash. 404)
eral court suit, was an election of remedies
whereunder the statute of limitations ran against MARSHALL-WELLS HARDWARE CO. V.
plaintiff's right to proceed in the state court. TITLE GUARANTY & SURETY CO.
| [Ed. Note. For other cases, see Election of (No. 12746.)
Remedies, Cent. Dig. § 12; Dec. Dig. Om7.] (Supreme Court of Washington. Jan. 28, 1916.) 4. LIMITATION OF ACTIONS 15-FORBEAR1. LIMITATION OF ACTIONS 13 – SUIT BY ING SUIT-PROMISE TO PAY-TOLLING STAT
CONTRACTOR'S SURETY TO RESTRAIN PROSE UTE.
The mere promise by the debtor to pay it
not sued affords no ground for estopping him Defendant, as surety on a contractor's bond from urging the defense of the statute of limguarantying the construction of a state aid road, itations, since in order to toll the statute, there brought a suit in the federal court to restrain must be a distinct agreement by the defendant the prosecution of numerous claims under the not to interpose such defense in consideration of bond in the state courts, to avoid a multiplicity the forbearance of the suit. of suits, praying an injunction against the in- [Ed. Note.-For other cases, see Limitation of stitution or prosecution of any other action un- Actions, Cent. Dig. 88 62–65; Dec. Dig. Om der the bond, and asserting its readiness at all 15.] times to pay all claims properly established as true claims against the bond. Plaintiff, who | Department 1 Appeal from Superior had a claim for materials furnished the con- I Court, King County; John E. Humphries, tractor and who was about to bring an action in a state court, entered its appearance in the
Judge. federal court suit relying upon the promise to Action by Marshall-Wells Hardware Compay properly established claims, and a further pany against the Title Guaranty & Surety promise to the same effect by counsel for de Company. From a judgment sustaining a fendant in such suit in respect of plaintiff's claim individually. Plaintiff proved its claim in
t aim'in demurrer to its complaint, plaintiff appeals. the federal court, as did numerous other claim Affirmed. ants, but after all the evidence was in the court on motion dismissed all claims less in amount Cassius E. Gates, of Seattle, for appellant. than $2,000, which included plaintiff's claim ; James B. Murphy, of Seattle, and Williamno in junction, however, was isued against bring- Ison, Williamson & Freeman, of Tacoma, for ing or prosecuting state court actions. In the meantime the statute of limitations had run
MOUNT, J. The trial court sustained a
demurrer to the plaintiff's complaint. The ute of limitations. Held, that there was not an plaintiff elected to stand upon the allega. estoppel under Rem. & Bal. Code, § 172, pro- tions thereof, and the action was dismissed. viding for the tolling of the statute of limita- | This appeal followed. tions by an injunction staying the commencement of an action, or under section 173, provid.  The complaint alleges in substance that ing for the commencement of a new action by in July, 1910, W. F. Guernsey & Co. entered
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 154 P.-51