Ryan v. Dowell

• Decision Date: 16 June 1915
• Docket Number: 12253.
• Citation: 86 Wash. 76,149 P. 343
• Parties: RYAN v. DOWELL.
• Court: Washington Supreme Court

149 P. 343

86 Wash. 76

RYAN v. DOWELL.

No. 12253.

Supreme Court of Washington

June 16, 1915

Department 2. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by T. Ryan against S. L. Dowell. From a judgment for plaintiff, defendant appeals. Affirmed.

William Wray, of Seattle, for appellant.

Gill Hoyt & Frye, of Seattle, for respondent.

FULLERTON, J.

In the last half of the year 1913 the respondent, who was plaintiff below, paved certain streets of the city of Seattle under contract with the city. In the work of paving he was required to use sand, gravel, and cement, and these he purchased from the appellant, to be delivered as needed at the place of use at prices per yard for the sand and gravel, and prices per barrel for the cement, mutually agreed upon. During the progress of the work partial accountings were had monthly between the parties, and payments were made to the appellant by the respondent on the basis of such accountings.

As a means of keeping an account of the quantities of materials delivered, the appellant furnished his deliveryman with salesman's pads, bound in tablet form, with alternating white, yellow, and pink slips. The white and yellow slips were carbonized on their backs, and the three were so bound together in the pads that a writing on the white slip would reproduce in the same relative position on the yellow and pink slips. On the delivery of materials of any sort the kind and quantity thereof would be written on the white slip by the deliveryman. The pad would then be handed to the person receiving the material, who would write his name on the white slip as a receipt. The yellow duplicate would then be torn from the pad and delivered to the receiver, and the white and pink slips retained for the use of the appellant. From these slips the quantities delivered between the times of the settlements were made up; the respondent relying for the accuracy of the account upon the signatures of his foreman and assistants as they appeared upon the white slips, rather than upon the duplicate slips delivered to him. As the work neared its close, the respondent conceived that he had been overreached and defrauded in these partial settlements; that the actual quantities of sand, gravel, and cement delivered was much less than the claimed quantities; and that he had been induced to pay for a large quantity of such materials in excess of that actually delivered.

The present action was instituted to recover the overpayments. On the trial the respondent's evidence tended to show that he had been overreached by the fraudulent manipulation by the deliveryman of the slips in the pads mentioned. As the pads were prepared and put together by the manufacturer, a writing on the white slip would reproduce only on the succeeding yellow and pink slips. But it was found that by removing the pink slips the writing on the white slip could be made to reproduce on two or more succeeding white and yellow slips, thus duplicating the signatures on the white slips, and enabling the appellant to turn in two or more such slips for a single delivery; that such slips were actually duplicated by the process mentioned and afterwards turned in, enabling the appellant to receive as the jury found, an excess payment for the three articles mentioned of the sum of $2,000.

In the course of the trial, over the objection of counsel, the respondent was permitted to show that the appellant had used the same means to defraud other contractors with whom he had contracts to furnish sand, gravel, and cement who were engaged in making street improvements in the city of Seattle at the time the respondent was so engaged, and was also permitted to show by a witness who had formerly been an employé of the appellant, that the witness had manipulated the pad books in the manner indicated on one such contract under the express direction and instruction of the appellant. It is the appellant's contention that this testimony was erroneously admitted, on the principle that in civil as well as in criminal actions evidence of the commission of another act of fraud or crime is not admissible to prove the fraud or crime charged. The case of McKay v. Russell, 3 Wash. 378, 28 P. 908, 28 Am. St. Rep. 44, is cited as sustaining the contention. That was an action to recover money paid on a contract for the sale of real estate on the ground that the contract was procured by fraudulent representations. It was held that it was not competent to show that in a similar transaction with another person had prior thereto the defendant had made like misrepresentations. It would seem on first impression that the case might be in point, but the respondent calls attention to the case of Yakima Valley Bank v. McAllister, 37 Wash. 566, 79 P. 1119, 1 L. R. A. (N. S.) 1075, 107 Am. St. Rep. 823, where an exception to the general rule announced in the earlier case was noticed, and makes the claim that the present case falls within the exception. The last cited case was an action upon a promissory note. The defense was that the indorsement thereon by which alone the defendant could be bound was not written by the defendant as an indorsement of the note, but was written in the belief that he was signing another instrument not creating a liability, for which instrument the persons conducting the transaction had fraudulently substituted the note. It was held admissible to show that the same parties, by similar methods, at about the same time, had procured indorsements of notes from other persons. In distinguishing the cases this language was used:

'It is insisted by the appellant that this testimony was inadmissible, and reliance is placed upon the case of McKay v. Russell, 3 Wash. 378, 28 P. 908, 28 Am. St. Rep. 44; and it might appear at first blush that that

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