charge the jury at any stage of the action and Alaska to recover upon the bond. No service itself render such judgment as it deemed the facts to warrant. of process was had on the principal, Wright, or on the sureties, Allardyce, Lackie, or Rawson. Service of process was, however, duly made on the other sureties named, and on September 15, 1905, judgment was rendered against them for the amount of the defalcation. An execution was issued on this judgment against the judgment debtors, and, while the writ was in the hands of the officer holding it in execution, Lindeberg, on August 27, 1906, caused the amount of the judgment to be paid to such officer by the check of the Pioneer Mining Company, a 88-GROUNDS-ABSENCE OF Corporation of which he was then president. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 317; Dec. Dig. 134. 7. PRINCIPAL AND SURETY 194(1)-PAY MENT BY SURETY-CONTRIBUTION. A surety, with others, on a postmaster's bond, against whom judgment was rendered, surety. 8. NEW TRIAL WITNESSES. In an action by a surety on a postmaster's bond, who had paid his part of the judgment, to enforce the judgment liability of cosurety, an affidavit showing that the ex-postmaster was a material witness for defendant and had prom ised to be present and testify, but that shortly before the trial be had gone to a remote town, where defendant could not communicate with him, in view of the fact that the action had been pending for more than four years, and that. the last continuance was at the defendant's request, upon his stipulation that no further continuance would be asked, and that the expostmaster resided without the jurisdiction of the court, was no ground for a new trial, since the failure to take his deposition was not an exercise of due diligence. [Ed. Note. For other cases, see New Trial, Cent. Dig. § 176; Dec. Dig. 9. NEW TRIAL 98-GROUNDS-ADDITION AL EVIDENCE-MATERIALITY. The absence of such witness was not a ground for a new trial, where it could not be said, in the light of the contradicting evidence of the opposing affidavits, that, were he present, [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 199, 200; Dec. Dig. 98. a different result would have been reached. Department 1. Appeal from Superior The sum paid was $10,667.30. Later on for the amount advanced, and shortly there- Subsequently Lindblom took an assignment from Lindeberg of his right to enforce contribution from the other cosureties, and on June 8, 1911, brought the present action in the superior court of King county, in this state, to recover from Johnston one-third of the amount paid in satisfaction of the judgment, with interest. In his complaint Lindblom alleged the facts substantially as we have recited them, alleging, however, that payment of the judgment was made by himself and Lindeberg jointly, making no men tion of the intervention of the Pioneer Mining Company, and alleging, further, the insolvency of the cosureties, Moore, Ferguson, Allardyce, Niebling, and Lackie, and the death of Rawson without estate. A demurrer was interposed to the complaint by Johnston, which the trial court overruled. An answer was then filed, putting in issue cer Court, King County; Everett Smith, Judge. tain of the allegations of the complaint. A Action by Erik O. Lindblom against E. W. Johnston. Judgment for plaintiff, and defendant appeals. Affirmed. John B. Hart and Frederick C. Kapp, both of Seattle, for appellant. John W. Roberts and Ira D. Orton, both of Seattle, for respondent. FULLERTON, J. The facts giving rise to the present cause of action, briefly stated, are the following: trial was entered upon by the court sitting with a jury, wherein, at the close of all of the evidence, the court took the case from the jury and directed a judgment for the plaintiff, Lindblom. Johnston appeals. [1] It is first assigned that the court erred in overruling the demurrer to the complaint. From the dates before given it will be observed that some five years elapsed between the time the judgment of the Alaska court was paid and the time of the commencement Some time prior to July 16, 1900, one of the present action, and it is contended Joseph H. Wright was appointed postmaster that the action is barred, both by the statute of the post office at Nome, Alaska. On the and by the doctrine of laches. In support of day named he qualified as such by giving the first contention it is maintained that the bond to the United States in the penal sum liability of a cosurety for contribution is not of $20,000, conditioned for the faithful per- contractual, and does not arise upon formance of his duties. His sureties on the written agreement, but is based on an imbond were Erik O. Lindblom, Jafet Linde- plied promise which the law raises from prinberg, E. W. Johnston, Bernard Niebling, Alex ciples of natural justice and equity, and Allardyce, W. H. Ferguson, Frank J. Lackie, hence an action to enforce contribution is Virgil Moore, and Alonzo Rawson. Subse- barred by that section of our statute (Rem. & quently Wright defaulted in his accounts, Bal. Code, § 159) which limits to three years and on July 9, 1904, the United States an action upon a contract, express or implied, brought suit in one of the district courts of which is not in writing, and does not arise For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tation of the statute. out of any written instrument. Many cases sustain the appellant's contention would reare cited from other jurisdictions which sup-quire its overruling. This we are not inport the principle, and were this section alone clined to do. We think it a correct interpreto be considered undoubtedly the rule contended for should be allowed to prevail. But our Code contains a provision not found in the statutes of states from which the precedents are chosen, which we have heretofore held changes the general rule. Subdivision 2 of section 157 of the Code provides that an action upon a contract in writing, or a con The case of Spokane County v. Prescott, 19 Wash. 418, 53 Pac. 661, 67 Am. St. Rep. 733, relied upon by the appellant, is not contrary to the principle here announced. That was an action by the county to recover against the sureties on a treasurer's bond for a defalcation of the treasurer after the statute had tract express or implied arising out of a writ- barred an action against him individually ten agreement, may be commenced at any time within six years after the cause of action accrued, and in Caldwell v. Hurley, 41 Wash. 296, 83 Pac. 318, we held that the section governed actions between cosureties for contribution. In the course of the opinion we said: "Said subdivision 2 of section 4798, Bal. Code, differs from the statutes of limitation of most, if not all, the other states. In fact, after a painstaking research, we have found no similar statute. The peculiar feature of our statute is that an implied liability arising out of a written instrument is included in the same clause with an express liability arising out of a written contract. The Legislature evidently thereby intended that a certain class of actions should be included within the terms of said section which had not in other states been associated or connected with actions on written instruments or actions founded upon written agreements. The liability for contribution of appellant and respondent is an implied liability which arose by reason of their becoming cosureties on the note. If they had not entered into the written contract which resulted from their signing their names on the back of the note, at the time, under the circumstances, and for the purpose, found by the court, there would be no liability. This liability now exists, is contractual in its nature, and is the direct result of that written agreement by which respondent was compelled to make the payment for which he now seeks contribution. The allegations of the amended complaint, and the facts found by the court, show a cause of action in favor of respondent on account of an implied liability arising out of a written agreement. To place any other construction on our statute would be to hold that the words contained in the last clause of said subdivision 2 were placed there without purpose or meaning." for the liability. It was sought to hold the sureties on the theory that their promise to answer for the defalcation was in writing, and that liability thereon existed for six years, which time had not then expired. The judgment was rested on the ground that there could be no recovery against the sureties unless liability existed against the principal at the time of the commencement of the action; this on the principle that their undertaking was collateral to his, and their liability ceased when his ceased. In the course of the opinion it was said that the right of action against the treasurer was not controlled by the bond, but existed independ ent of it, and hence the statute of limitations governing the right of action in such a case was in no way affected by the bond. But plainly this is not the question now before us. Here a recovery has been had against the defaulting officer, and no question exists as to his liability. Certain of the sureties have made the default good, and now seek contribution for a cosurety. The obligation to make the defalcation good arises out of the bond, and manifestly it is not contrary to the rule of the cited case to say that a right of action is affected by a different section of the statute of limitations. [2] Nor is the contention that the action is barred by laches tenable. Laches is a doctrine of equity. It does not arise from mere lapse of time alone, but arises upon lapse of time together with some intervening change in the condition or relation of the parties adversely affecting the rights of the party sought to be charged. To constitute laches, not only must there have been delay in the assertion of the claim, but some change of condition must have occurred which would make it inequitable to enforce the claim. No such condition appears on the face of the complaint before us. It shows a delay merely; nothing to indicate that the appellant has been injured in any way by the delay. Since, therefore, the delay was short of the period of the statute of limitations, it does not constitute a bar. The case of Seattle v. Walker, 87 Wash. 609, 152 Pac. 330, while not presenting the same state of facts, supports the rule in principle. The question there considered was the right of the city to recover an overpayment made to a contractor on a public work. One of the contentions was that the liability to refund the overpayment was an implied liability arising out of a written agreement, and hence within the six-year statute cited. The contention was disallowed, not on the principle that all implied liabilities were relegated to the three-year statute, but on the ground that the overpayment was made in violation of the terms of the written contract, and thus could not be said to arise out of written agreement. But if it be said that the questions decided in this case may Wright, and certain of the sureties on the be distinguished from the questions presented bond not here affected, could have been in the case at bar, we are clear that the ear-forced to contribute to the satisfaction of the [3] Another contention made in this connection may be noticed here. It is said that the evidence discloses that the principal, them within a reasonable time after the pay-did not agree with their findings. Having true. Were Wright's testimony in the record Beck was not able to make his payments in the form that it appears in his affidavit, on the note and mortgage, he entered into we cannot, in the light of the contradictory | negotiations with respondent which culmievidence, think that a different result should | nated on November 21, 1914, in the transfer have been reached. ment of the judgment, and that these rights are now lost. But we think the evidence sufficiently establishes that these persons have been insolvent at all times since the judgment, and that suit against them would have been useless. But we cannot think the plea would avail the appellant in any event. He was one of the persons against whom the judgment was rendered. His liability to pay was coequal with that of any other surety, and the duty to see that all contributed was as much his duty as it was the duty of any other surety. But he neither paid nor offered to pay his just proportion of the judgment. On the contrary, he repudiated the obligation, and compelled those who did pay it to resort to the courts to enforce the duty against him. Clearly in equity he is in no position to complain of their neglect. [4] The next contention is that there is a variance amounting to a failure of proof between the allegation of the complaint and the evidence by which the allegations were sought to be established. This contention is founded on the fact that the allegation of the complaint is that the judgment was paid by the respondent and Lindeberg, while the evidence shows that it was paid by the Pioneer Mining Company, whom the respondent afterwards reimbursed, and who was subsequently reimbursed to the extent of one-half of the amount by Lindeberg. But we can hardly think this contention tenable. The Pioneer Mining Company was not obligated on the judgment, and its advancement of the money was made at the respondent's request, and was nothing more than a temporary loan. It was clearly a payment by the respondent, and he stated the facts sufficiently when he alleged a payment by himself merely, without setting forth the details as to the manner of the payment. [5] Nor was the payment of one-half of the liability by Lindeberg to the respondent voluntary, in the sense that he could not enforce contribution from the other sureties for the excess of his proportionate share. No payment by a surety of an obligation which can be coerced against him is voluntary in this sense. As between the respond ent and Lindeberg the latter was obligated to contribute up to one-half the sum the respondent was compelled to pay. His right to a contribution for the other sureties then arose, and he could assign this claim to respondent for the purposes of suit. The right to contribution being equitable, a court of equity may seize upon the entire case and compel all of the obligors to do equity. [6] It is next contended that the court erred in taking the case from the jury and rendering judgment on the facts in favor of the respondent. But, since the action is one of equitable cognizance, the verdict of the jury would at best have been only advisory, and subject to avoidance in case the court the power to disregard the verdict, the court could, without committing error, discharge the jury at any stage of the proceedings, and itself render such judgment as it deemed the facts warranted. [7] Some question is made as to the sufficiency of the evidence to justify a recovery. A reading of the record, however, convinces us of the justness of the respondent's claim. The obligation he was forced to pay was one on which the appellant was equally liable. The proofs abundantly show that all the other cosureties, as well as the principal, are now, and at all times since the judgment was paid have been, insolvent. In justice and equity the respondent should contribute to the paying sureties his proportionate share of the liability. Error is assigned on the admission of certain testimony and the refusal of the court to compel the production of the books of the Pioneer Mining Company. These questions we shall not discuss in detail. Our examination of the record convinces us that they are not of sufficient merit to require a reversal. [8,9] Error is also assigned on the refusal of the court to grant the appellant's motion for a new trial. This motion was based upon affidavits tending to show that ex-Postmaster Wright was a material witness on behalf of the appellant and had promised to be present and testify at the trial. They further show that shortly before the cause was set for trial Wright left his usual place of abode in San Francisco, Cal., and went to a remote mining district in Oregon, where he remained until after the trial had been concluded, that he did not know the case had been set for trial, and that the appellant was unable to communicate the fact to him, and that for this cause alone he was not present. Wright's affidavit is filed in support of the motion, and states facts material to the issues between the parties. But we think, nevertheless, that the court did not err in denying the motion. The action had been pending for more than four years, and the last continuance was had at the appellant's request, under an express stipulation that no further continuances would be asked. Wright, moreover, resides and, in so far as the record discloses, has at all times resided, without the jurisdiction of the court, so that there was no means of compelling his attendance by process. Seemingly, therefore, it was not the exercise of due diligence to fail to take his deposition. Again, Wright, in detailing the circumstances connected with the transaction, names a number of persons as having to do therewith. In response to the motion the respondent produced the affidavits of these persons each of whom contradict Wright concerning the matter recited, showing that his recollection or knowledge of the particular transaction was either faulty or that his averments were un The judgment is affirmed. of this property by N. B. Beck and wife to respondent by a quitclaim deed in full satisfaction of the note and mortgage. Before re MORRIS, C. J., and MOUNT, ELLIS, and spondent would accept this deed he caused CHADWICK, JJ., concur. (92 Wash. 208) WISWELL v. BECK. (No. 13429.) (Supreme Court of Washington. July 11, 1916.) 1. ΤΑΧΑΤΙON 687-RECOVERY OF TAX PAID -RIGHTS OF PERSON MAKING PAYMENT. to be made a search of the records in the office of the treasurer of King county, who certified in writing that all taxes on the property to date were paid. Appellant is the brother of N. B. Beck and owns a tract of land immediately adjoining the lands in question, and on June 29, 1914, appellant, as he claims by mistake, paid taxes on the lands here involved for the year 1913, and redeemed them from a certificate of delin Rem. & Bal. Code, § 9277, providing that one who mistakenly pays taxes on another's real property may secure a certificate of delinquency upon the owner's refusal to reimburse him, is inapplicable to property transferred to a bona quency, issued to another for delinquent fide purchaser, since the statutory liability rests taxes assessed against them for the years upon the owner's obligation to have paid the 1911 and 1912. In February, 1915, appellant, taxes originally. Dec. Dig. 687.] having found out his alleged mistake, de[Ed. Note. For other cases, see Taxation, manded from respondent payment of the 2. TAXATION 531(2) RECOVERY OF TAX money so paid out by him for taxes. This RIGHTS OF PERSON MAKING PAY- demand was refused, and since these taxes were claimed by appellant to have been paid PAID MENT. At common law, a purchaser was not liable by mistake, a certificate of delinquency was to one who had mistakenly paid taxes on the then demanded, and was issued to appellant purchased property. [Ed. Note. For other cases, see Taxation, by the county treasurer under the provisions Cent. Dig. § 987; Dec. Dig. 531(2).] Rem. & Bal. Code, $ 9233, allowing certain of Rem. & Bal. Code, § 9277, which we quote: "If any property owner shall pay taxes on the property of another by mistake of any kind, and the owner of such property fails or refuses, after thirty days' demand, to reimburse such payer before the date on which the delinquency certificates are issued, as provided in this chapter, the payer, or his assignee, may surrender the tax receipt given for such tax payment to the county treasurer and take a certificate of delinquency in lieu thereof, on payment of the accrued interest thereon." Respondent then instituted this action to persons to recover taxes paid by them on anoth- have the cloud created by this certificate of er's property, refers to actions against a party originally obligated to pay the tax, and is inap- delinquency removed, with the result as statplicable to an action against a subsequent bona ed above. fide purchaser. [1] Granting that these taxes were paid [Ed. Note. For other cases, see Taxation, by appellant by mistake, we think that, neiCent. Dig. § 987; Dec. Dig. 531(2).] Department 2. Appeal from Superior Court, King County; A. W. Frater, Judge. Suit to quiet title by George E. Wiswell against W. W. Beck. Judgment for plaintiff, and defendant appeals. Affirmed. S. D. Wingate, of Seattle, for appellant. James Kiefer, of Seattle, for respondent. HOLCOMB, J. This action is to quiet title to a certain tract of land situated in King county. After a trial before the court without a jury, findings and judgment in conformity with the prayer for relief were entered, from which this appeal is taken. The material facts as found by the court are briefly these: Prior to November 21, 1914, N. B. Beck and wife were the owners of the premises in controversy subject to a mortgage held by respondent upon which there was still due the sum of $2,800. As N. B. ther under the statute (Rem. & Bal. Code, § 9277) nor the common law is there any authority which makes it incumbent on a purchaser of property in good faith to go any further than to ascertain if the taxes are paid; it not being necessary to discover who paid them. We think this statute is based on the continuing ownership of the property, and is not applicable where the land is transferred to a bona fide purchaser without notice, who has searched the records and found from them that the taxes are paid, and who would not have purchased the property had he known that it was subject to a tax lien. The wording of the statute seems to support this construction, as it is evident that the words "owner of such property" mean the owner of the property at the time the taxes became delinquent, as the object of this statute was to give a lien to a person paying taxes on property by mistake as against the Although the fact that boards were nailed over the feed hole in roof of a freight car, so that there was a space left between the roof of the car and the board, was a sufficient cause and proof of negligence of the railroad company towards its employés, no presumption arises, from the mere fact that deceased, a brakeman who had been walking on the car, was found dead beside the track, that his fall was caused by the boards. owner of the property at that time whose duty to the state it was to pay the taxes; and, since the payer has performed this duty of the owner, it is just and equitable that the owner should be made to reimburse the payer who has performed the owner's duty to the state by mistake. In the instant case there was no duty to pay these taxes imposed upon respondent by law or otherwise, as he was not the owner of the property at the time the taxes became delinquent or when paid by appellant, nor would he have accepted the property if he had known that there was a tax lien outstanding against it. [2] Nor do we think appellant's contention can be sustained under the common law, for while the general rule is that a purchaser of property must be deemed to have notice of the tax lien, it does not necessarily follow that such purchaser is deemed to have notice of who paid the taxes and whether or not they were paid by mistake, when he has a certificate of the treasurer that the taxes are paid. In this case the respondent has taken notice of the tax lien of the state by securing such certificate, and the payment thereof extinguishes the lien of the state, and this lien is not transferred to appellant by reason of his payment of the taxes as against respondent, a purchaser in good faith without notice. Appellant cites Parks v. Watson (C. C.) 20 Fed. 764, in support of his theory that the lien of the state for unpaid taxes is transferred to a person paying the taxes by mistake; but the court also said in supporting this rule that it was the property owner's duty to pay the taxes, and if he refused to do so and they were paid by another, he cannot be relieved of the cloud created by a tax until he has refunded the money to the person so paying the taxes, showing conclusively that this rule is based on the assumption that the ownership of the property is a continuing one. Packwood v. Briggs, 25 Wash. 530, 65 Pac. 846, Burgert v. Caroline, 31 Wash. 62, 71 Pac. 724, 96 Am. St. Rep. 889, and Vietzen v. Otis, 63 Wash. 411, 115 Pac. 858, are also relied on by appellant as authorities supporting the rule that the payer of taxes on the premises of another has a lien on the property therefor. These cases present situations where the person paying the taxes has some right or claim of ownership in the property and makes the payment for the purpose of protecting this claim or right, and not by mistake, and so far as the facts appear the ownership was a continuing one or the vendee had notice of the tax lien claimed by the payer, and for these reasons are distinguishable. The whole theory of these cases, holding that the state's lien is transferred to the payer of taxes on property of which he is not the owner, is that the payer has performed a duty which was by law im posed upon the owner who neglected to perform it, and that no hardship will be worked on the owner in performing this duty to the payer who has performed his (the owner's) duty to the state. It is apparent that this rule is not applicable to the present case on account of the subsequent transfer of the property to an innocent purchaser without notice of the alleged mistaken payer. [3] Finally, to allow appellant to prevail would violate the well-established maxim that where one of two innocent parties must suffer through the misrepresentation of a third party, the one whose mistake or negligence made such injury possible must bear the loss, as it was the negligence of appellant in paying taxes on the wrong property which induced respondent to take this property from N. B. Beck in satisfaction of the mortgage, relying on the record showing the taxes fully paid, and by obtaining the certificate of the treasurer to that effect respondent omitted nothing that equity or fair dealing could require of him. [4] Appellant also relies on Rem. & Bal. Code, § 9233, but an examination of that statute discloses that it only allows a recovery for taxes paid out by a certain class of persons against some one who was obligated to pay the taxes, and is practically the common-law rule enacted in the form of a statute. The judgment is affirmed. MORRIS, C. J., and BAUSMAN, MAIN, and PARKER, JJ., concur. (92 Wash. 185) PARMELEE v. CHICAGO, M. & ST. P. RY. CO. (No. 13239.) (Supreme Court of Washington. July 11, 1916.) 1. NEGLIGENCE134(11)-EVIDENCE-PROXIMATE CAUSE-CIRCUMSTANTIAL EVIDENCE. Negligence is a fact to be proven either by direct or circumstantial evidence and not presumed on conjecture or speculation; but, if there be proof of probable cause, whether an injury resulted in consequence of the established cause may be left to reasonable inference. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 273; Dec. Dig. 134(11).] 2. MASTER AND SERVANT 265(3) - INJURIES SERVANT-NEGLIGENCE - CIRCUMSTAN TO TIAL EVIDENCE. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 879, 897; Dec. Dig. 265(3).] 3. NEGLIGENCE 134(11) - EVIDENCE-CIR CUMSTANTIAL EVIDENCE. In an action for personal injuries, if the existing state of affairs, however dangerous, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 158 P.-62 |