46 Wash. 117 | Wash. | 1907
The plaintiff in this action is the receiver of the Agnew-JBaldwin Cedar Company, an insolvent corporation. Said corporation is the successor, by mere change of name, of the Flynn Shingle Company. The defendants are husband and wife, and were such when the transactions occurred of which the plaintiff complains. It is alleged that from the 16th day of December, 1901, to the 11th day of April, 1904, the defendant W. I. Agnew was the secretary and treasurer as well as manager of the said corporation, and within his said óapacities and while acting therein, he appropriated and converted to himself and his codefendant funds of said corporation in the sum of $1,580.92. This is a suit by the receiver against both husband and wife to recover judgment for the above-named amount. The material averments of the complaint are denied by the answer. A trial was had before a jury, and a verdict was returned for the plaintiff in the sum of $1,472.80. Judgment was forthwith entered for the amount, but upon hearing the defendants’ motion for new trial, it appeared to the court that the verdict should have been in the sum of $1,167.10, and the plaintiff agreeing in open court to such reduction, it was ordered that the judgment should be reduced to the last-named amount. The defendants have appealed.
It is assigned that the court erred in refusing to grant the motion for nonsuit, for the reason that it appeared that the receiver had no interest in the indebtedness sought to be enforced, and also that there was further error in permitting the respondent, after the motion for nonsuit had been submitted, to reopen the case and offer additional evidence. One ground urged for the nonsuit was that respondent had not shown himself to be the owner or holder of the claim upon which he sued. As receiver he represented the corporation. The claim sued upon was for moneys of the corporation al
It was claimed by appellants that the appellant W. I. Agnew had, while he was the secretary and treasurer of the corporation, purchased from one Powe a boom of cedar logs, for which he paid with his private funds, and that he turned these logs over to the corporation and took credit in his account with the company for the sum of $1,540 as the value of the logs. This item was in dispute between the parties at the trial. Powe was then dead, and appellant asked a disinterested witness certain questions which called for statements the deceased Powe had made to him concerning a sale of a boom of logs to appellants. Respondent’s counsel objected, and remarked that the offered evidence purported to be the conversation of a dead man. The objection was sustained, and an answer the witness had given was stricken on the express ground, as stated by the court, that it was hearsay evidence. The ruling was not erroneous. The evidence was clearly hearsay, and the court was not required to admit evidence which it saw was clearly objectionable as hearsay, merely because counsel had named a ground of objection that might not have been effective if the testimony had been otherwise competent.
It is next contended that the verdict was excessive, and that it was necessarily given under the influence of passion and prejudice. We have seen from the statement of the case that the court made the final judgment $305.70 less than the amount of the verdict. This reduction was made by the court for the reason that, during the argument to the jury, one of respondent’s counsel placed a large number of figures upon a blackboard, representing items involved in the accounts between the parties, and he seems to have conceded by the figures and argument that respondent was en
It is also contended that the verdict as reduced is not sustained by the evidence. It is true the appellants by their evidence claimed credits for items which in the aggregate would more than offset the amount of the verdict even as
Crow, Mount, Dunbar, and Rudkin, JJ., concur.