Potter v. City of New Whatcom

• Decision Date: 24 February 1899
• Court: Washington Supreme Court
• Parties: POTTER v. CITY OF NEW WHATCOM.

56 P. 394

20 Wash. 589

POTTER v. CITY OF NEW WHATCOM.

Supreme Court of Washington

February 24, 1899

Appeal from superior court, Whatcom county; H. E. Hadley, Judge.

Action by A. Potter against the city of New Whatcom. From a judgment sustaining a demurrer to the answer, defendant appeals. Affirmed.

Fairchild & Bruce, for appellant.

T. E Cade and S. A. Calvert, for respondent.

REAVIS J.

Action on warrants drawn against a street-improvement fund assessment district in the city of New Whatcom. The city of New Whatcom had entered into a contract for improving streets, and, in discharge of the contracts with the contractors, delivered warrants drawn payable out of street-improvement funds for the assessment districts in which the improvement was done. These warrants were assigned to the respondent. The city answered and pleaded (1) the statute of limitation of two years, and (2) that of three years, and set forth that the city treasurer collected large sums of money due to various funds and accounts on various street assessment districts, as well as for other purposes and that a portion of the money so collected was represented by the amounts named in the complaint; that the city treasurer did not, however, cover the money, or any part thereof, in the treasury of the city, but converted the same to his own use, and that none of the money ever came into the hands of the appellant; that such facts became known to the city about the 1st day of September, 1893, and the respondent was informed of it as early as the 1st of January 1894, and had full knowledge of the conversions and defalcations of the city treasurer, and was apprised that the money had been wrongfully and unlawfully converted by the treasurer; and further set out that the city took steps to collect on the bond of the treasurer the money referred to in the complaint, together with other moneys then due, and that an adjustment was made by which property was turned over exhausting the treasurer and bondsmen to the extent of their liability, and that appellant has set apart such property for a special fund, and proposes to pay it out pro rata to the various funds with which the treasurer was chargeable, and that none of the property has so far been converted into money; and all of these facts were known to the respondent more than three years before the commencement of the suit. The respondent demurred to the answer on the ground that it did not state facts sufficient to constitute a defense, which demurrer was sustained; and appellant,...