tardy. A decree was accordingly entered, | action necessarily implied an acceptance of dismissing the action as against Ed. S. Rus- the work as then completed as certified. If sell and National Surety Company. Plaintiff appeals. affirmative action be held now necessary, we think that this was such an affirmative recognition of the work as completed as to constitute an acceptance. The very fact that the 10 per cent. was held up for only 30 days after this affirmative action upon the engineer's complete estimate, when interpreted in the light of the contract (to which alone the holding up is referable, since the statute contains no authority for holding up anything for any time), is in itself a recognition by the city council that the contract had been completed 30 days before the final estimate was to be paid. [1, 2] The sole question is this: When was the contract completed and the work accepted by the city council? The statute in force when this bond was given and when the action was tried and judgment rendered (Rem. & Bal. Code, § 1161,) provided that no laborer or materialman shall have any right of action on the bond "unless within thirty [(30)] days from and after the completion of the contract with an acceptance of the work by the board, council," etc., he shall present and file with such board, council, etc., a notice in writing in substantial compliance with Even aside from any affirmative action on the form in the statute prescribed. The stat- the part of the city council, this case is conute as amended in 1915 requires acceptance by trolled by our decision in the case of Wheel"affirmative action" of the board or council. er, Osgood Co. v. Fidelity & Deposit Co., Laws of 1915, p. 62; Rem. Code, § 1161. The 78 Wash. 328, 139 Pac. 53. In that case amending act of 1915 provides that the amendments shall be retroactive. We entertain grave doubt as to the constitutionality of this retroactive provision, but in any event the amendments were not the law when the judgment here assailed was rendered; hence cannot affect it. we held that, because the contract gave the architect control of the work and provided for the payment on the architect's certificate, an acceptance by the architect was an acceptance by the board of control, in that the contract itself, by reason of the broad powers which it gave to the architect, made It will be noted that the statute makes no him the board's agent to accept the work. A provision for the holding up of any portion comparison of the contract there with the of the contractor's pay for any time after contract here convinces us that the powers the completion of the contract and acceptance conferred on the city engineer in this case of the work. That provision is found only were fully as broad as those conferred on the in the contract. The holding up of the 10 per architect in that case. In other respects cent. estimated in both the complete esti- the case here is much stronger on the facts mate and the final estimate therefore must in favor of respondent than was the case in be referred to the contract, not to the stat- favor of the bondsmen there. In that case ute. Both the bond and every right which there was no affirmative action of the board can be asserted under it is referable solely to on the final estimate of the architect, which the statute. There can be no question but was made on December 6, 1912, except to that on November 25, 1913, the date of the en- pass the final estimate voucher on December gineer's complete certificate, the work was 23d, yet we held that the work was acceptin fact substantially completed. The evi-ed on December 6th because on that date dence shows that nothing further was done, the architect had certified completion. In except what is called "clean-up work," such the case now in hand the city council actualas removing unused bricks, removing the ly approved the complete estimate of Notarpaulins and sand from the pavement, and vember 25, 1913, which also included the removing tools and lumber used in the work. final 10 per cent. estimate of $16,856.17, on The engineer then certified that the work the same day that it was made. The sowas completed-"one hundred per cent. com- called final estimate furnished on December plete." Upon his finding that it was com- 23d was no more than the final estimate pleted, he based his estimate of the sum then voucher involved in the Wheeler, Osgood due, 90 per cent. of the entire balance of the Company Case for the percentage which, uncontract price, and certified this to the coun- der the contract alone, not under any provicil for approval and payment by warrant. In sion of the statute, had been held up. Clearthe same certificate he included an esti- ly, under the contract, the council's order mate of the 10 per cent. to be held up under to pay this balance recognized the work as the terms of sections 6 and 7 of the contract completed 30 days before. Every element of until "thirty days since the completion of acceptance found in the Wheeler, Osgood the work has expired." The order of the Company Case is found here with an added council based upon this certificate and esti- element of the affirmative action of the city mate referred to the matter as "work com- council approving and paying the 90 per cent. pleted." The action of the council in or- estimate based upon the engineer's certificate dering the complete estimate of 90 per cent. and advice that the contract was then 100 paid as certified by the engineer was the per cent. completed. only action of the council ever taken direct- The facts and the law involved in the ly upon this certificate of completion. That Wheeler, Osgood Company Case were passed The judgment is affirmed. MORRIS, C. J., and MOUNT, FULLERTON, and CHADWICK, JJ., concur. (93 Wash. 67) GOLDSWORTHY et al. v. OLIVER et ux. (No. 13312.) CEASED. upon by this court in three cases, in that [ing that fact, we cannot assume that the case, in the case of Union Iron Works v. court has committed the error complained of. Strauser, 82 Wash. 51, 143 Pac. 446, and in the case of McGowan Bros. Hardware Co. v. Fidelity & Deposit Co., 84 Wash. 470, 147 Pac. 44. In the first two of those cases exhaustive petitions for rehearing were filed, which after mature consideration were denied. The only possible material distinction between the facts of those cases and the facts here is as we have noted in favor of re-(Supreme Court of Washington. Sept. 27, 1916.) spondent here. There is no distinction what1. WITNESSES 164(3) COMPETENCY ever between the law of those cases and the "TRANSACTIONS" WITH PERSONS SINCE DElaw of the case here. All arose under the same statute. From a reading of those cases it is too clear for cavil that on the facts here either the certificate of completion made by the city engineer on November 25, 1913, was a final acceptance in law which the city could not dispute, or the action of the council on the same evening in passing and paying the 90 per cent. complete estimate was such an affirmative action recognizing the work as completed, as to meet the express terms of the statute as an acceptance. In either event, as pointed out in the Wheeler, Osgood Company Case, a legal acceptance, binding as between the city and the principal contractor, is binding also upon the materialman. The fact that the "clean-up work" was done after the engineer certi- Cent. Dig. § 685; Dec. Dig. 164(3).] [Ed. Note.--For other cases, see Witnesses, fied that the work was 100 per cent. complet-3. WITNESSES 164(2) ed is immaterial. As we said of a similar [3] No fraud or collusion on the part of the city engineer in the present case is claimed. We are clear that the court's finding that the contract was completed and the work accepted by the council on November 25, 1913, is correct under the law and the evidence. This works no hardship upon a reasonably prudent laborer or materialman. He is not required to wait for completion or acceptance of the work. He can file his claim as soon as he finishes furnishing labor or materials. Such has been our liberal construction of the statute since January 8, 1910. Cascade Lumber Co. v. Ætna Indemnity Co., 56 Wash. 503, 106 Pac. 158; McLeod v. Russell, 59 Wash. 676, 110 Pac. 626; Washington Monumental, etc., Co. v. Murphy, 81 Wash. 266, 142 Pac. 665. [4, 5] Appellant argues that in any event the court erred in not entering a personal judgment against the contractor, McNerney. It is asserted that he defaulted, but there is nothing in the record to show that he was served personally with summons, or that an order of default was ever entered against him. Obviously, unless he was personally served, the court had no jurisdiction to enter a personal judgment against him. In the absence of anything in the record show The identification of signatures by a deceBal. Code, § 1211, providing that where the addent to receipts does not come within Rem. & verse party sues or defends as administrator, executor, or legal representative of a deceased person, a party in interest shall not be admitted to with or statement made to him by the deceased. testify in his own behalf as to any "transaction" [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 685; Dec. Dig. 164(3). For other definitions, see Words and Phrases, First and Second Series, Transaction.] 2. WITNESSES BILITY. 164(3)—RECEIPTS-ADMISSI In an action by executors for the price of notes sold to defendants, receipts by the dece dent, the signatures to which were identified by defendant and also by other witnesses, were properly admitted in evidence. COMPETENCY TRANSACTIONS WITH PERSONS SINCE DE CEASED. fendant as to a receipt given by decedent, which In an action by executors, testimony of dehad been lost and was therefore not produced, was inadmissible as showing a transaction with the decedent. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 684; Dec. Dig. 164(2).] 4. EVIDENCE 354(12)-DOCUMENTARY EVI DENCE-BOOKS OF ACCOUNT "SHOPBOOK." A book kept by defendant containing only an account between him and the plaintiff's intestate, though defendant had been in the grocery business, was a man of affairs and was director in a bank, and apparently a careful business man, is not admissible in evidence as a shopbook when the items were apparently all made at the same time. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 1456; Dec. Dig. 354(12).] 5. WITNESSES 159(13) COMPETENCY TRANSACTION CEASED. WITH PERSONS SINCE DE to decedent constituted transactions as to which The payment of amounts due by defendant defendant could not testify. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 681; Dec. Dig. 159(13).] 6. APPEAL AND ERROR 893(1)-REVIEW TRIAL DE Novo. notes sold the defendants is triable de novo on An action by executors for the price of appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent, Dig. §§ 3626, 3628, 4620; Dec. Dig. 893(1).] Department 1. Appeal from Superior Court, Kitsap County; Walter M. French, Judge. Action by Samuel Goldsworthy and others against R. J. Oliver and wife. From a judgment for plaintiffs for a sum less than that demanded, plaintiffs appeal. Reversed and remanded, with instructions. as the receipts already offered, but that this receipt had been lost. Objections were made to the introduction of the two receipts of January 8 and May 28, 1912, upon the ground that the defendant was incompetent to tes Thomas Stevenson, of Bremerton, and Lew-tify because the receipts involved a transacis & Legg, of Seattle, for appellants. F. W. Moore, of Bremerton, for respondents. MOUNT, J. This action was brought by the executors of the estate of Peter Mack, deceased, against R. J. Oliver and wife, to recover $6,868.50, alleged to be due upon the purchase by the defendants of a promissory note which was owned by Mr. Mack in his lifetime. The answer of the defendants admitted the purchase of the note, but denied that it had not been paid, and alleged payment. The court upon these issues proceeded to the trial of the case, and concluded from the evidence submitted that the defendants were indebted to the estate of Peter Mack, deceased, in the sum of $89.75, and entered a judgment therefor. The plaintiffs have appealed from that judgment. It appears without dispute that in November, 1911, Peter Mack held a note for $10,000 signed by William Bremer and A. G. Benbennick. At that time several payments had been made upon the note, so that there was then due thereon $8,468.50. Mr. Mack agreed with Mr. Oliver that if he would take the note and collect it, he might retain from the amount collected $500, and whatever costs and expenses he was to in making collection. This was agreed to, and on November 2, 1911, Mr. Mack executed a power of attorney authorizing Mr. Oliver to receive and collect the note. Mr. Oliver thereupon collected the amount due upon the note, viz. $8,468.50. It is not claimed that any of this money was paid to Mr. Mack at that time. But Mr. Oliver on November 6th deposited in the Citizens' Bank of Bremerton $100 to the credit of Mr. Mack. From that time on until January 6, 1914, Mr. Oliver made a number of deposits in the bank to the credit of Mr. Mack. These deposits altogether amounted to $950. Mr. Mack in the meantime drew checks against these deposits. On March 19, 1914, Mr. Mack died, leaving $55 in the bank to his credit. He left a will, leaving his estate to the plaintiffs herein, who are the executors of his estate. tion between the deceased and the defendant which was prohibited by section 1211, Rem. & Bal. Code, to the effect that in an action or proceeding where the adverse party sues or defends as executor, administrator, or legal representative of any deceased person, then a party in interest shall not be admitted to testify in his own behalf as to any transaction had by him with, or any statement made to him by, such deceased or insane person. [1, 2] We are of the opinion that the identification of the signatures to these receipts does not come within the terms of the statute because such identification is not a transaction with the deceased or statement made by him. Furthermore, even if the identification of these signatures may be held to be a transaction between a deceased person and the witness, other witnesses upon the trial identified the signatures of Mr. Mack. We are satisfied, therefore, that as to the receipt for $220 and the receipt for $1,650, the court properly admitted them in evidence. [3] The receipt for $1,000 was not produced. The witness testified that this receipt was lost. We are satisfied that the court erred in receiving this evidence. No other person testified to having seen the receipt. The giving of the receipt for $1,000 to Mr. Oliver by Mr. Mack, if it was so given, was clearly a transaction between these two persons. The receipt itself, if in existence, would be evidence of the fact that it was given. But we think in the absence of the receipt, it would not be competent for Mr. Oliver to testify that such a receipt had been given, or was in existence. This court, in White v. Walker, 84 Wash. 652, 147 Pac. 409, held in an action brought to establish a lost deed, that the person to whom the deed was given could not testify that she had received it, because that would be a transaction between such person and the deceased person. For the same reason it is clear that the receipt in this case could not be proven by the person to whom the receipt was given without production of the receipt itself. We are of opinion, therefore, that the court erred in receiving this evidence in regard to the lost receipt. At the trial Mr. Oliver, in order to show payment, which was then the only issue in [4] In order to show further payments, Mr. the case, testified that he had made these Oliver produced a book in which he testified deposits in the bank. He was shown a re- he kept the account between himself and Mr. ceipt for $220, dated January 8, 1912. He Mack. He testified that the entries made in testified that he was acquainted with the sig- this book were made about the times therein nature of Mr. Mack, and that Mr. Mack had stated, and that they were correct. This signed the receipt. He was also shown an- book contained no other account. It shows other receipt dated May 28, 1912, for $1,650, upon its face that the items therein entered and identified the signature thereto as the were all made in the same handwriting, in signature of Mr. Mack. He also testified green ink, and apparently all made at the that he had another receipt for $1,000, dated same time. The account begins, according April 5, 1912, which bore the same signature to the statement contained in the book, on June 9, 1911. It extended, upon its face, over dates up to March 2, 1914. It shows upon its face only cash debits against Mr. Mack, and that between these dates Mr. Mack had received more than the amount owing from Mr. Oliver by some $24. This book was received in evidence over the objection of the appellant. In receiving the book in evidence the trial court was controlled by the rule in Ah How v. Furth, 13 Wash. 550, 43 Pac. 639. In that case Ah How, who had been working for the estate of Yesler, deceased had kept the account of his work, and of moneys received from Mr. Yesler. His account book was received in evidence in that case; and this court held that such book was not within the statute. The account there referred to was kept by Ah How, who apparently had no other business than the business of cooking for Mr. Yesler. The account book probably showed the dates on which he labored, and the pay which he had received from Mr. Yesler. We think that case goes to the limit of the rule, and that the rule ought not to be further extended. In this case the book offered in evidence was kept by a man who was engaged in business in the city of Bremerton. If he was not at the time this trans action occurred, he had been before in the grocery business. He was a man of affairs, was director in the Bank of Bremerton, and was apparently a careful business man. The book contained one item of credit for $8,468.50, obtained upon the note. The debits were all cash items varying from $5 to more than $1,000. A number of items are for $100; several are for $500, and $400, and $300. There was no evidence that any of these payments were made by the defendant Oliver except the book itself. As we have said, this book does not appear upon its face to be a tradesman's book, kept in the line of business of Mr. Oliver, but is at most a private account, kept by him for moneys advanced to Mr. Mack during his lifetime. the entry must be made with the intent to make a charge. Thus books of entries of work done have been held inadmissible where the primary object of the entries was to enable the party to settle with his employés in the work and not to charge the work against the adverse party. So a book of credits and not of charges kept by a party's books are inadmissible to establish a So a purchaser or employer is inadmissible. negative in his favor by showing the absence of affirmative entries." We think under this rule that the book here offered was not admissible because it was clearly not a shopbook. It appears upon its face that it was not a book kept in the ordinary business of Mr. Oliver. It does not appear true upon its face by reason of the fact that it appears to have been drawn up all at one time and not extending over a period of two years. We think it appears upon its face to be a self-serving declaration. There was opportunity here for better evidence of the transactions than the book itself. It appears from the record beyond dispute that Mr. Oliver, as we have seen above, was a man of affairs. He was a business man of ability, accustomed to banks and banking business. He was a director in a bank. Peter Mack, during his lifetime, was a bachelor. He lived in filth. He was intoxicated a great portion of his time. In short, Peter Mack, during the last years of his life, was irresponsible on account of his habits and mode of living. It seems to us incompatible with good business judgment, which we must attribute to Mr. Oliver, that he would advance $400 and $500 at a time to Mr. Mack without issuing his check therefor, or without taking a receipt from Mr. Mack. And yet, if this book is admissible in evi dence, and may be received, we must conclude that Mr. Oliver advanced as much as $3,000 to Mr. Mack in that way. [5] It is plain from the statute itself that the payment of these different amounts would be transactions between the deceased and Mr. Oliver. He cannot upon the witness stand testify that he made these payments. The rule is stated in 17 Cyc. at page 381, To admit this book in evidence would, in as follows: effect, authorize a person before the trial of an action to write a statement upon a paper or in a book, and then by testifying that the statement was correct and the items were entered at the time of the different dates therein, make a book admissible in evidence as a trade book. In other words, to declare this book, under the circumstances, admissible, is to declare an easy mode of avoiding the statute. We are satisfied that the rule "But as a general rule books of account of a party are not admissible in his own favor to prove charges for 'money paid' or 'money lent,' or cash items or dealings between the parties generally, since these charges are not usually such as are made in the ordinary course of business, and since other and better evidence of the transaction usually exists or might reasonably be called for by the party making the advance. This rule has been modified by some of the decisions, however, and it is held that where money charges are made in the banking business, or otherwise as a matter of fact in the ordinary in the Ah How Case should not control this course of business, the accounts will be admissi- case, and that the admission of this book in ble under the shopbook rule. Moreover the evidence was error. effect of the decisions in some jurisdictions is to extend the rule permitting proof of the delivery of goods sold and the performance of labor by shopbooks so as to include charges of sums of money not exceeding a certain sum, or small sums not definitely fixed by law. "To be admissible under the shopbook rule the book must as a general rule contain charges by [6] This case is triable here de novo. The record is before us. It shows upon its face, and is admitted, that the defendant was to deduct $500 from the amount collected on the note. He was also to receive $151.20 in costs of collection. The evidence besides his deposited in the bank $950 to the credit of| MORRIS, C. J. Appeal from a judgment upon a verdict in favor of the plaintiffs in an action to recover damages for false representations in a trade of real estate. Respondents authorized appellant, a real estate broker, to dispose of their equity in ten Seattle lots. Under this authority appellant secured a trade for 40 acres of land in Yakima county. Respondents, alleging that they were induced to make the trade through fraudulent representations as to the character and value of the Yakima county land, brought this action against the broker and recovered judgment, from which this appeal is taken. Several questions are raised by the appeal, but as our conclusion as to one necessitates a new trial this only will be noted. In instructing the jury as to the measure of measure would be the difference between the damages the lower court charged that such ket value of the 40 acres in Yakima county on the day of the trade. This was clearly error. The measure of respondents' damage would be the actual loss sustained by them and no more. It was also shown by disinterested witnesses that during the last sickness of Mr. Mack, and after his death, Mr. Oliver advanced money to pay for articles furnished to Mr. Mack before his death, for doctor bills, etc., and after his death, for funeral ex-market value of the Seattle lots and the marpenses, the sum of $726.50. These added together make a total payment from Mr. Oliver to Mr. Mack of $5,097.70. Deducting this from the amount of money Mr. Oliver owed to Mr. Mack upon the note, leaves $3,370.80. We think it plain from the record here that the plaintiffs are entitled to a judgment against the respondents for that amount. The judgment is therefore reversed, and the cause remanded, with instructions to the superior court to enter a judgment against the defendants for $3,370.80, with interest from the date the complaint was filed. for the wrong suffered." 81 Wash. 471, 142 Pac. 1166. The wrong suffered by respondents, if any, was not to be measured by the market value of the Seattle lots, but only by the value of the interest they lost. The appellant alleges that respondents authorized it to sell their equity in the. Seattle lots, and the value MORRIS, C. J., and ELLIS and CHAD- of such equity is the only loss complained WICK, JJ., concur. (93 Wash. 88) of. The damages suffered then would be BOUCKAERT et ux. v. BURWELL & MOR- and the cause remanded for a new trial (Supreme Court of Washington. FRAUD AGES. Sept. 30, 1916.) In an action for damages for false representations as to the value of land for which plaintiff was induced to trade his equity in certain lots, the measure of plaintiff's damage was the actual loss sustained by him and no more, and was to be measured not by the market value of the lots, but only by the value of the interest he lost. [Ed. Note.-For other cases, see Fraud, Cent. Dig. 8 60; Dec. Dig. 59(1).] Department 1. Appeal from Superior Court, King County; Boyd J. Tallman, Judge. Action by George Bouckaert and wife against Burwell & Morford, Incorporated. Judgment for plaintiffs, and defendant appeals. Reversed, and cause remanded for a new trial. MOUNT, CHADWICK, ELLIS, and FUL LERTON, JJ., concur. HAWN . YAKIMA COUNTY. (Supreme Court of Washington. (93 Wash. 87) (No. 13337.) Sept. 30, APPEAL AND ERROR 979(2) NEW TRIAL 70-DISCRETION OF TRIAL COURT-GRANTING NEW TRIAL. The trial court is vested with discretion to order a new trial on the ground of the insuffi ciency of the evidence to justify the verdict, and its order will not be disturbed on appeal, where there is no manifest abuse of its discretion. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3871: Dec. Dig. 979(2); New Trial, Cent. Dig. § 97; Dec. Dig. 70.] Department 1. Appeal from Superior Byers & Byers, of Seattle, for appellant. Court, Yakima County; E. B. Preble, Judge. E. M. Farmer, of Seattle, for respondents. Action by G. W. Hawn against Yakima For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |