City of Hillyard v. Carabin, 13762.

CourtUnited States State Supreme Court of Washington
Writing for the CourtHOLCOMB, J.
Citation96 Wash. 366,165 P. 381
PartiesCITY OF HILLYARD ex rel. TANNER, Atty. Gen., v. CARABIN et al.
Docket Number13762.
Decision Date18 May 1917

165 P. 381

96 Wash. 366

CITY OF HILLYARD ex rel. TANNER, Atty. Gen.,
v.

CARABIN et al.

No. 13762.

Supreme Court of Washington

May 18, 1917


Department 2. Appeal from Superior Court, Spokane County; E. H. Sullivan, Judge.

Action by the City of Hillyard, on the relation of W. V. Tanner, Attorney General, against John A. Carabin and the Massachusetts Bonding & Insurance Company. From a judgment for plaintiff, defendants appeal. Judgment modified. [165 P. 382]

W. C. Donovan and Chas. E. Swan, both of Spokane, for appellants.

W. V. Tanner, Atty. Gen., Scott Z. Henderson, Asst. Atty. Gen., C. C. Upton, of Hillyard, and L. L. Thompson, of Olympia, for respondent.

HOLCOMB, J.

This action was brought on behalf of the city of Hillyard to recover from appellants Carabin and Massachusetts Bonding & Insurance Company, the surety on his official bond, certain sums of money which the city claims to have lost by reason of alleged fraudulent acts committed by Carabin, while acting as the city treasurer, together with his alleged coconspirators, the city engineer and city clerk.

The record shows that during Carabin's terms of office a great many men were employed by the city in constructing a water system, and that, instead of paying these men by warrant as provided in Rem. & Bal. Code, § 7687, they were paid in cash by Carabin when they presented a time certificate to him, signed by the foreman of the works, at which time they signed a voucher for the same. During the first part of the work this was the only record kept of these men. Later on pay rolls were kept, but the men were still paid by cash, instead of warrants. At the end of the month a warrant to relieve cash would be issued to Carabin by order of the city council. Carabin would then take this warrant to the bank, where it would be cashed, and the cash deposited to the credit of the city of Hillyard. The bank would hold the warrant until it was presented and paid. On April 1, 1913, Carabin, the city engineer, and the city clerk were charged with conspiracy, and later pleaded guilty to conspiring to defraud the city out of certain money by forging the names of fictitious persons on the pay roll. The evidence of handwriting experts was introduced also tending to show that the names on the receipts, vouchers, and pay roll were forged by Carabin, the city engineer, and the city clerk; it being respondent's theory that the alleged payees were fictitious [96 Wash. 368] persons, and that the moneys purported to have been paid to them were wrongfully retained by the conspirators.

From an adverse judgment in the sum of $4,015.93, appellants appeal, and urge that, since the gravamen of this action is fraud, in order for respondent to recover, it must establish by a preponderance of the evidence that Carabin was guilty of fraud as alleged, and also that the men whose names were alleged to have been forged to the pay roll and vouchers were fictitious persons, or had not worked for the city as pretended, and that such money was retained by Carabin and his coconspirators.

In considering this question, the evidence shows that Carabin might have incurred a prima facie liability on the ground of illegally paying out the city's money, irrespective [165 P. 383] respective of the question of active fraud, for Rem. & Bal. Code, § 7687, specifically provides that all demands against cities of the third class shall be paid by warrants which shall specify the purpose for which they are drawn. From this statute it is apparent that the action of Carabin in paying claims against the city in cash without...

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11 practice notes
  • Common School District No. 18 v. Twin Falls Bank and Trust Co., 5860
    • United States
    • United States State Supreme Court of Idaho
    • June 24, 1932
    ...Ritzville State Bank, 154 Wash. 140, 281 P. 332; City of Seattle v. Walker, 87 Wash. 609, 152 P. 330; City of Hillyard, etc., v. Carabin, 96 Wash. 366, 165 P. 381; People v. Weineke, 122 Cal. 535, 55 P. 579; State v. King, 34 Neb. 196, 33 Am. St. 635, 51 N.W. 754; State v. School District, ......
  • Vill. of Dolton v. Harms, Gen. No. 43308.
    • United States
    • United States Appellate Court of Illinois
    • November 6, 1945
    ...is the wrongful and illegal act of the principal upon which the liability of the surety is dependent.’ Hillyard ex rel. Tanner v. Carabin, 96 Wash. 366, 165 P. 381;Board of Com'rs of Graham Co. v. Van Slyck, 52 Kan. 622, 35 P. 299. ‘The gist of the action is not the bond but the wrongful ac......
  • City of Lowell v. Massachusetts Bonding & Ins. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 24, 1943
    ...justify himself in paying out moneys without such warrants to a contractor at the request of the treasurer. See also Hillyard v. Carabin, 96 Wash. 366, 165 P. 381. We do not follow the cases just cited for reasons stated hereinafter. A second rule announced in some jurisdictions is that, as......
  • Lincoln County v. Fidelity and Deposit Co. of Maryland, No. 13327
    • United States
    • Idaho Supreme Court
    • August 12, 1981
    ...County v. Kent, 209 Mich. 160, 176 N.W. 601 (1920); Bitter v. Bexar County, 266 S.W. 224 (Tex.Civ.App. 1924); City of Hillyard v. Carabin, 96 Wash. 366, 165 P. 381 (1917); County of Platte v. New Amsterdam Cas. Co., 6 F.R.D. 475, 495-96 (D.Neb.1946); 20 C.J.S. Counties § 160 (1940); 67 C.J.......
  • Request a trial to view additional results
11 cases
  • Common School District No. 18 v. Twin Falls Bank and Trust Co., 5860
    • United States
    • United States State Supreme Court of Idaho
    • June 24, 1932
    ...Ritzville State Bank, 154 Wash. 140, 281 P. 332; City of Seattle v. Walker, 87 Wash. 609, 152 P. 330; City of Hillyard, etc., v. Carabin, 96 Wash. 366, 165 P. 381; People v. Weineke, 122 Cal. 535, 55 P. 579; State v. King, 34 Neb. 196, 33 Am. St. 635, 51 N.W. 754; State v. School District, ......
  • Vill. of Dolton v. Harms, Gen. No. 43308.
    • United States
    • United States Appellate Court of Illinois
    • November 6, 1945
    ...is the wrongful and illegal act of the principal upon which the liability of the surety is dependent.’ Hillyard ex rel. Tanner v. Carabin, 96 Wash. 366, 165 P. 381;Board of Com'rs of Graham Co. v. Van Slyck, 52 Kan. 622, 35 P. 299. ‘The gist of the action is not the bond but the wrongful ac......
  • City of Lowell v. Massachusetts Bonding & Ins. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 24, 1943
    ...justify himself in paying out moneys without such warrants to a contractor at the request of the treasurer. See also Hillyard v. Carabin, 96 Wash. 366, 165 P. 381. We do not follow the cases just cited for reasons stated hereinafter. A second rule announced in some jurisdictions is that, as......
  • Lincoln County v. Fidelity and Deposit Co. of Maryland, No. 13327
    • United States
    • Idaho Supreme Court
    • August 12, 1981
    ...County v. Kent, 209 Mich. 160, 176 N.W. 601 (1920); Bitter v. Bexar County, 266 S.W. 224 (Tex.Civ.App. 1924); City of Hillyard v. Carabin, 96 Wash. 366, 165 P. 381 (1917); County of Platte v. New Amsterdam Cas. Co., 6 F.R.D. 475, 495-96 (D.Neb.1946); 20 C.J.S. Counties § 160 (1940); 67 C.J.......
  • Request a trial to view additional results

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