40 Wash. 81 | Wash. | 1905
Lead Opinion
In the year 1890 the city of Ballard, by proper proceedings, improved Ballard avenne, .created an assessment district, and afterwards levied a special assessment on all property in said district, thereby creating a special fund to pay for said improvement. A contract was let to one Thadeus Comfort for the total sum of $13,585.99, which was to be paid by warrants issued against said special fund. Tinder Bal. Code, § 943, the expense of said improvement at street crossing^ and intersections became a liability of the city, which in this instance amounted to $982.43. The total assessment made on property in the special district was $11,982.11, which, with said sum of $982.43, made a special fund of $12,965.20, not sufficient to pay the full contract price. Ho objection to the insufficient amount'of said assessment has ever been made by any of the parties interested. The entire assessment made has been collected by the city. .
Said improvement was fully completed by the contractor, and the city issued warrants to him numbered 1 to 79, inclusive, drawn on said Ballard avenue street improvement fund, for the total amount of $13,585.99, the entire contract price. F. P. Hemen purchased warrants 70, 71, and 72, each for $200, from said contractor, and owned the same at the time of the commencement of this action. Said warrants were identical in form and amount, Ho. 70 reading as follows:
“Ho. 70. Street Improvement Warrant, $200.00.
“Ballard, Wash., Hovember 12th, 1890. “Treasurer of the Town of Ballard:
“Pay to Thadeus Comfort, or bearer, the sum of two hundred dollars out of the Ballard Avenue Street Improvement Funds, under Ordinance Ho. 12, not otherwise appropriated.
“Chas. Hadfield, Town Clerk. C. F. Treat, Mayor.”
B. P. Hemen, as holder and owner of said prior warrants Nos. 71 and 72, claiming that said later warrants had been paid hy said city with money that belonged to said special Ballard avenue fund, and that his warrants should have been first paid, commenced this action to recover damages sustained hy him resulting frota the wrongful action of respondent in first making payment of said subsequent warrants. The city pleaded the statute of limitations, to which affirmative answer the said B. P. Hemen replied hy alleging that he had no- knowledge of the misappropriation of moneys belonging to- said special fund, until within three years prior to the commencement of this action. Upon the evidence, the trial court found this allegation to he true, hut also found that all the above transactions were matters of public record from and after the time of their occurrence, and that said Hemen had constructive notice thereof.
Trial was had without a jury, and the court made findings hy which the facts above stated were ascertained and determined. No exceptions were taken to said findings, the same having been accepted by-both parties. Upon said find
Only two questions arise for our consideration: (1) Has the action been barred by the statute of limitations ? (2) Is appellant entitled to recover on the facts found? We do not think the action has been barred. The trial court found affirmatively that said F. P. Hemen had not, at any time within three years prior to the commencement of this action, any actual notice or knowledge of the action of the city in taking up said later warrants. Hnder the authority of New Yorh Security & Trust Co. v. Tacoma, 30 Wash. 661, 71 Pac. 194, and Northwestern Lumber Co. v. Aberdeen, 35 Wash. 636, 77 Pac. 1063, this action was commenced in time.
If respondent, in taking up said later warrants Hos. 73 to 79, disbursed money belonging to said special Ballard avenue fund, and in so doing paid warrants later than those held by appellant, and if, after payment of all warrants prior to those held by appellant, said money would have been sufficient in amount to have paid appellant’s warrants, and if no money now remains in said special fund to pay appellant, then, under the holdings of this court, respondent would in this action be liable to appellant for damages sustained. New York Security & Trust Co. v. Tacoma, supra; Northwestern Lumber Co. v. Aberdeen, supra; Potter v. New Whatcom, 20 Wash. 589, 56 Pac. 394, 72 Am. St. 135; North Western Lumber Co. v. Aberdeen, 22 Wash. 404, 60 Pac. 1115. Most of said cases also hold that warrants drawn on a special fund should be paid in the order of their priority. See, also, La France Fire Engine Co. v. Davis, 9 Wash. 600, 38 Pac. 154; Bardsley v. Sternberg, 18 Wash. 612, 52 Pac. 251, 524.
In Bal. Code, § 943, which provides the method of making street improvements, creating assessment districts, and levying special assessments, we find the following language:
“The expense of all improvements in the space formed by the junction of two or more streets, or where one main street terminates in or crosses another main street, and also all necessary street crossings or crossways at corners or intern-sections of streets . . . shall be paid by such city.”
The record shows that one entire contract was let to Thadeus Comfort to make the complete improvement, including crossings, street intersections, etc. The contract price was $13,585.99, which necessarily included the $982.43, for which the city was liable: The contractor was to be paid only in warrants issued from time to time on said special Ballard avenue fund. Seventy-nine warrants in all were issued to said contractor on said special fund, for the full contract price
Our conclusion is that only one fund was contemplated, and that, after the seventy-nine special warrants had been
In argument, respondent refers to this transaction as a cancellation of an excess of warrants which had been improperly issued against the special fund. We think, however, that its legal effect was a payment of said special fund warrants with money which rightfully belonged to said special fund and should have been placed therein. Seventy-nine warrants had been issued in payment of $13,585.99, the full contract price. The only money that could become available to pay said seventy-nine warrants in their order was the special assessment coming from property in the dis- • trict, and the money due from the city for its share of the contract, and the total special fund thus created should have been paid on the special fund warrants in their order’. Holding, as we do, that said $982.43 was legally and rightfully a part of said special fund, and should have been trans
Mount, O. J., Hoot, Hadley, and Dunbar, JJ., concur.
Dissenting Opinion
(dissenting) — I am of the opinion that the appellant’s right of action was barred by the statute of limitations, and I dissent from the conclusion reached by the majority.