Robbins v. Fitzgerald

• Decision Date: 08 October 1913
• Citation: 75 Wash. 617,135 P. 656
• Court: Washington Supreme Court
• Parties: ROBBINS v. FITZGERALD et al. (WYMAN, PARTRIDGE & CO., Intervener.

135 P. 656

75 Wash. 617

ROBBINS v. FITZGERALD et al. (WYMAN, PARTRIDGE & CO., Intervener.

Supreme Court of Washington

October 8, 1913

Department 1. Appeal from Superior Court, Thurston County; John R Mitchell, Judge.

Action by C. H. Robbins against James Fitzgerald and wife, and another, in which Wyman, Partridge & Co. intervened. From a judgment for plaintiff, intervener appeals. Affirmed.

The original complaint did not ask for a cancellation of the deed to the Fitzgeralds but merely for the cancellation of their deed to the other defendant, so that the judgment obtained might be a lien on the land.

Leopold M. Stern and J. W. Russell, both of Seattle, for appellant.

Troy &amp Sturdevant, of Olympia, for respondent.

GOSE J.

The controversy here is between the plaintiff and Wyman Partridge & Co., an intervener. The plaintiff seeks to rescind a sale and transfer of a tract of real estate situated at Yelm in Thurston county, in this state, on the ground of fraud. The intervener defends as an attaching creditor of the defendants Fitzgerald, the grantees named in the deed of conveyance. The plaintiff commenced his action and filed a lis pendens one day in advance of the levy of the writ. The plaintiff prevailed in the court below. The intervener, who will hereafter be called the appellant, prosecutes this appeal.

The facts in brief are these: On or about the 31st day of May, 1910, the respondent, then a resident of Yelm, purchased a stock of goods from the defendants Fitzgerald, situated at Fullerton, in the state of North Dakota, where the defendants then resided. At or about the same time the respondent conveyed to the defendants, Fitzgerald the tract of land in controversy for an agreed consideration of $500. The Fitzgeralds in exchange for the deed gave the respondent their check upon a local bank at Fullerton for $500, which the respondent forwarded to his wife at Yelm. A few days later, and before the check was presented for payment the Fitzgeralds directed the bank to refuse payment, and when the check was presented, the bank, in accordance with its instructions, refused to pay it. The plaintiff thereupon commenced this action, alleging certain fraudulent acts on the part of the Fitzgeralds in the sale of the goods in addition to the facts stated. The prayer was both for specific relief, and for 'such other and further relief as to the court shall seem meet in the premises.' The Fitzgeralds conveyed the property to the defendant Eldred without consideration and without his knowledge. The summons and complaint were personally served upon all the defendants. After the case had been tried, but before the court reached a decision, an amended complaint and alias summons were personally served upon all the defendants. In the amended complaint it is alleged that the Fitzgeralds, at the time they gave the check to the respondent, knew that he intended to forward it to his wife at Yelm, in this state, and that they then intended to stop payment of the check, and thereby defraud the respondent out of his property. The prayer of the amended complaint is that the deed from the respondent to the Fitzgeralds and the deed from them to Eldred be set aside and held for naught. In the original complaint there was no direct allegation of a specific intent on the part of the Fitzgeralds to stop payment of the check at the time they gave it, and there was no direct prayer for a cancellation of the Fitzgerald deed. Before the filing of the amended bill, the respondent's wife filed her appearance in the case. In her appearance she states that she 'joins with him [the plaintiff] in the complaint herein, and accepts the result of the action as being binding and conclusive upon her.'

The court found that the Fitzgeralds had the specific intent to stop payment of the check at the time they gave it. The argument has taken a wide range in the briefs submitted by the appellant on questions both of fact and law, but we think the facts found by the court are supported by a preponderance of the evidence, and this makes the law of the case simple. The respondent testified pointedly to the exchange of the real estate for the check, and the defendants have confessed their fraudulent intent at the time they gave the check by failing to appear and contest the charge. Moreover, the conduct of the Fitzgeralds subsequent to the giving of the check leads irresistibly to the inference that they had the fraudulent intent at the...