121 Wash. 149 | Wash. | 1922
Respondent Kane & Company contracted with one Colyar to erect a building in the city of Okanogan, and Colyar secured from appellant, Woodbury Lumber Company, materials of a total value of about $16,000. The first materials were furnished on January 16, 1920, and the last on November 26, 1920. Payments were made from time to time by respondent to
Appellant carried a good many accounts with Colyar which were unsettled at the time the payments now in controversy were made, and each piece of work was carried under a separate heading with a designation of the particular work for which the materials were supplied.
On March 4, 1920, respondent paid the contractor $3,000, and on the same day Colyar paid to appellant $2,000. On June 6 respondent paid Colyar $4,500, and on June 8 the latter paid to appellant $3,000, and on August 20 respondent paid to Colyar $5,000, and on the following day Colyar paid to appellant $4,000. The first and second of these payments received by appellant were all applied to accounts other than that of respondent’s job, and of the last payment $2,396.66 was credited to the account kept of the respondent’s job and the balance was applied upon other accounts owing by Colyar to appellant. Colyar left the scene of his activities in December, 1920.
In this case, however, the trial court found as to each of the payments that appellant had full knowledge that the same came from and were paid by the respondent to be applied on account of materials furnished by appellant, and that appellant knowingly and wrongfully misappropriated the payments which they credited to other accounts. Appellant attacks this finding as not being supported by the evidence.
The evidence shows that Okanogan is a place of one thousand or twelve hundred people; that the manager of appellant corporation had lived in the city for several years, and lived there during the time covered by the incidents material here; that the office of the company adjoined the dwelling house of the contractor, Colyar, and was but a very short distance from the building for which the materials were supplied; that the manager was upon intimate terms with the contractor and had assisted him in getting a contract a short time previously; that the manager repeatedly urged respondent to make payments, and made frequent inquiries as to respondent’s ability to make payments at the bank where all parties kept their accounts; that none of the other accounts for material at all approached respondent’s account in magnitude; that the time for filing liens had expired on all accounts except two when appellant commenced receiving the payments in question, and as to one of these latter accounts the manager, after attempting to have a payment made
In addition to the superior advantage the trial judge had of estimating the value of such testimony, we think the other facts in the case fully warranted the trial court in refusing to accept this testimony and in making the finding complained of.
The owner made payments on his contract, the amounts passed to the materialman having notice of the contract and the source of the payments, and this case is governed by our decisions in Crane Co. v. Pacific Heat & Power Co., 36 Wash. 95, 78 Pac. 460; Hughes & Co. v. Flint, 61 Wash. 460, 112 Pac. 633.
The judgment is affirmed.
Parker, C. J., Main, Holcomb, and Mackintosh, JJ., concur.