May v. Roberts

• Decision Date: 10 October 1923
• Docket Number: 17906.
• Citation: 126 Wash. 645,219 P. 55
• Parties: MAY et al. v. ROBERTS.
• Court: Washington Supreme Court

219 P. 55

126 Wash. 645

MAY et al. v. ROBERTS.

No. 17906.

Supreme Court of Washington

October 10, 1923

Department 1.

Appeal from Superior Court, Spokane County; Mitchell Gilliam, Judge.

Action by D. K. May and another against Joseph C. Roberts. Judgment for defendant, and plaintiffs appeal. Reversed and remanded for new trial.

James Emmet Royce, of Spokane, for appellants.

Turner Nuzum & Nuzum, Wakefield & Witherspoon, and H. T. Davenport all of Spokane, for respondent.

BRIDGES J.

With the assistance of the respondent, the appellants borrowed $10,000 from a man by the name of Stewart, and gave their promissory note therefor. It was secured by certain capital stock of the Gibson Mining Company, of which they were promoters. In order to assist the appellants in getting the money, the respondent also put up to Stewart, as collateral security, certain of his own personal property. Later, it is alleged, there was an agreement between the appellants and the respondent whereby the latter, in consideration of receiving a portion of the capital stock of the mining company, assumed and agreed to pay the Stewart note. This he failed to do. Judgment was taken against the appellants on the note, and they here seek to recover of respondent on account of his agreement. One of respondent's defenses was that he was induced to make the agreement solely because of representations made by the appellants to him concerning the mines in question, in that they had told him that the titles were perfect and were unincumbered and that they had invested some $30,000 of their own private money in the property and its development, and that they intended to use the $10,000 borrowed for a like purpose, and that all of such represtnations were untrue. On the trial the respondent testified concerning these representations and introduced in evidence, over the objections of the appellants, the testimony of several persons who had bought some of the same mining stock of or through the appellants about the same time, and that appellants had made the same representations to them, and they were untrue.

The chief question here is whether it was error to receive the last-mentioned testimony.

There is nothing to show that the representations made to the third parties were made in the presence of the respondent, or that he knew of them, or that he had knowledge that they had been made or relied thereon.

Before examining this question in detail, it may be well to read the general rule as laid down by one or two authorities.

10 R C. L. 938 says:

'When there is a question whether a person said or did something in fact that he said or did something of the same sort on a different occasion may be proved if it shows the existence, on the occasion in question, of any intention, knowledge, good or bad faith, malice or other state of mind, or of any state of body or bodily feeling, the existence of which is in issue or is deemed to be relevant to the issue. Indeed, when the knowledge and intent of a party is a material fact, proof of matters apparently collateral is admissible in many cases, both civil and criminal. * * * If the question be whether a given act was accidental or intentional, the fact that the actor has at numerous times performed similar acts under similar circumstances, excluding the idea of accident, is very strong proof that the act under investigation was also intentional.'

In 3 Greenleaf on Evidence, § 15, it is said:

'In the proof of intention it is not always necessary that the evidence should apply directly to the particular act with the commission of which the party is charged, for the unlawful intent in the particular case may well be inferred from a similar intent proved to have existed in other transactions done before or after that time.'

Let us now examine our own cases on this subject.

In McKay v. Russell, 3 Wash. 378, 28 P. 908, 28 Am. St. Rep. 44, the facts were that the appellants were the owners of some lots in the town of Ballard, King county, in this state, and sold a few thereof to the respondent. Later the respondent sought to rescind the sale on the ground that appellants had misrepresented to him the size and location of the lots. On the trial he offered, and the court received, the testimony of another person to the effect that at about the same time appellants had sold him certain lots in the same town site, making to him the same representations. We held that the testimony of the third party was inadmissible, quoting from Greenleaf on Evidence as follows:

'In some cases, however, evidence has been received of facts which happened before or after the principal transaction, and which had no direct or apparent connection with it; and therefore their admission might seem, at first view, to constitute an exception to this rule. But those will be found to have been cases in which the knowledge or intent of the party was a material fact, on which the evidence, apparently collateral and foreign to the main subject, had a bearing and was therefore admitted.'

In Carnahan v. Moore, 70 Wash. 623, 127 P. 195, we held that in an action for damages for deceit in misrepresenting the price paid by the defendants for a certain tract of land, one half of which was bought by the plaintiff, evidence of similar representations to another party who took the other half of the land was admissible, as tending to show the representations made by the plaintiff, because the two sales were parts of one and the same transaction. The ruling in this case is squarely baded on that in Oudin v. Crossman, 15 Wash. 519, 46 P. 1047, where we said, concerning certain objectionable proof:

'This testimony related to representations made by the defendants, or by Charles Crossman, the husband, regarding the existence and character of the mine in controversy, and as to the value of the ores therein contained. It is urged that the same is inadmissible on the ground that the representations were not specifically made to the plaintiff, but were made to other parties, or to people in the vicinity generally. We think this testimony was admissible. It is evident that the purpose of the defendants was to sell the mine to any one that could be induced to purchase it, and that it was all one continuous scheme or transaction, and the plaintiff was not precluded from showing such representations, made in furtherance of that purpose, although the same were not made to him personally.'

In Yakima Valley Bank v. McAllister, 37 Wash. 566, 79 P. 1119, 1 L. R. A. (N. S.) 1075, 107 Am. St. Rep. 823, we held that where insurance solicitors obtained the defendant's indorsement of a note by device or trick, evidence is admissible that other parties living in the neighborhood were deceived by the same device and trick into giving similar notes, because it is always competent to show that the acts complained of were part of a general scheme to perpetrate a fraud upon the people of the neighborhood.

The case of Ryan v. Dowell, 86 Wash. 76, 149 P. 343, was in principle very similar to the case last cited, and we followed it.

In State v. Smith, 103 Wash. 267, 174 P. 9, we said:

'There is no more insidious and dangerous testimony than that which attempts to convict the defendant by producing evidence of crimes other than the one for which he is on trial, and such testimony should only be admitted when clearly necessary to establish the essential elements of the charge which is being prosecuted. To establish the guilty intent, unlawful motive, or criminal knowledge, it is permissible to show that the act charged against the defendant was one in a series of similar ones; but beyond this the state cannot go and, for the purpose of securing a conviction, show the perpetration of other similar acts, even though committed in furtherance of a general scheme, where there is no proof required to establish intent, motive or knowledge, other than proof of the act charged itself.'

In Great Western Motors, Ltd., v. Hibbard, 112 Wash. 541, 192 P. 958, the appellant sold an automobile to respondent, representing that it was a new machine of a 1918 model, and later respondent sought to rescind on the ground of misrepresentation, in that the machine was an old one and was a 1917 model. He offered, and the court received, testimony from a third party to the effect that the appellant had previously sold him the same machine upon the same representation. We held that such testimony was inadmissible, taking the position that, in making the representations, intent was wholly immaterial, because the result to the respondent would have been the same whether appellant intentionally or unintentionally made the misrepresentations, and that since intent was not involved in the case, proof of prior similar misrepresentations concerning the same machine was not admissible. We said:

'If in a given case, such as we find this to be, it is unimportant to show knowledge or intent in establishing a cause of action, it is manifestly dangerous, and insidiously unfair to an adversary, to introduce evidence of prior independent conduct for the purpose of convincing a jury that the principal transaction--the one upon which the trial is had--was prompted by an intention to cheat and defraud.'

It is of course, the general rule in civil cases that testimony may not be received concerning similar acts, conduct, or representations for the purpose of proving the particular act or representation charged in the complaint. But there are certain exceptions to the general rule. The exceptions found in all or some of the authorities we think may be stated thus: (1) Proof of separate but similar acts or representations may be received for the purpose of tending to show the intention, motive, or knowledge of the...