87 Wash. 29 | Wash. | 1915
The statement of the issues made by appellant is agreed by respondent to be full and correct and is here adopted:
On March 13, 1914, the appellant filed a petition for a writ of mandate against the respondent, praying that such writ issue commanding the respondent to pay to the appellant the amount of a warrant for $3,000, drawn in his favor by the county auditor, or show cause why he should not be required so to do. This petition was supported by the affidavit of the relator, in which it appeared that the defendant, at all times in the affidavit mentioned, was the duly elected, qualified and acting treasurer of the county of King, state of Washington; that the county of King, at all times mentioned in the affidavit, had been conducting a county hospital in the city of Seattle; that, on October 29, 1913, King county required an automobile ambulance for such hospital, and on said date the county commissioners directed the purchasing agent of the county to make a requisition for an automobile ambulance to cost not to exceed $3,000. At
On March 24, 1914, the return day of the show cause order, the defendant filed his answer in which he set up affirmative defenses as follows: His first affirmative defense was
that M. L. Hamilton and Krist Knudsen were regularly elected, qualified and acting commissioners of King county, Washington; that on the 29th day of October, 1913, and for several years prior thereto, and at the time of the filing
The second affirmative defense was to the effect that, in the purchase of said automobile, Hamilton, as county commissioner, was personally beneficially interested directly and indirectly in the sale, and that said sale was made by, through or under the supervision of Hamilton, as county commissioner aforesaid; that by reason of the fact that said Hamilton, as county commissioner, was interested personally in the sale of said automobile to the county, the sale was void, and the warrant drawn in payment therefor was illegal and void, and not a valid obligation against the county, and did not authorize the defendant to pay the same out of funds in his hands as treasurer.
A reply was duly served and filed, in which the relator admitted that Hamilton and Knudsen were regularly elected, qualified and acting county commissioners, and that he presented said warrant to the defendant, and that the defendant refused payment thereof, but denied each and every other allegation in each of said affirmative defenses.
“First: Did the board of county commissioners of King county, Washington, in regular or special session, purchase-an automobile ambulance from Cecil H. Upper on or about the 29th day of October, 1913, or if you find that said board did not purchase said ambulance on said day, did the board at a regular or special meéting thereafter ratify the purchase of said ambulance by accepting the same and allowing the account therefor chargeable against said county at a regular or special meeting of said board, the minutes of which were signed by the chairman of said board? Answer: Yes.
“Second: Was M. L. Hamilton the owner of said ambulance at the time of said purchase, if you find there was a purchase in October, 1913, or at the time of the ratification of such purchase thereafter, if you find there was such' a ratification? Answer: No.
“Third: Was said M. L. Hamilton beneficially interested or concerned directly or indirectly in any contract wherein the county purchased said ambulance or any sale thereof made by, through or under the supervision of the board of county commissioners? Answer': Yes.”
The appellant duly filed a motion for a new trial, basing his ground therefor upon irregularity in the proceedings of the court and jury by which he was prevented from having a fair trial, insufficiency of the evidence to justify the verdict, and that it was against the law, errors in law occurring’ at the trial and excepted to by the plaintiff, which motion was overruled. Thereafter an order was filed dissolving the order to show cause, and dismissing thé action with prejudice.
The trial judge having suggested to counsel his relationship with Dr. Richardson, an important witness, it was stipulated that the decision of the jury upon the special questions of fact should be binding upon the parties and the court.
The finding of the jury upon the third special interrogatory does not impinge the second. The second propounded the principal basic fact with clear precision. The third was broad, general and somewhat involved. Had the second not been propounded and the third question propounded in its stead, its intendment might be said to cover the pertinent fact in the case. The third contains two apparently separable propositions, viz., “Was M. L. Hamilton beneficially interested,” in any contract wherein the county purchased the ambulance; and, “Was M. L. Hamilton concerned directly or indirectly in any contract, etc.?” The jury answered “Yes.” “Yes,” to what? If to his being “beneficially interested,” it may be affirmed that this finding is inconsistent with the second finding, which no fair intendment will allow. If “yes” to the query whether he was “directly or indirectly concerned” in any contract wherein the county purchased the ambulance, there can be no doubt but that necessarily he must have been directly concerned ás a member of the board in the county’s transaction. The. jury might have understood it either way. It occurs to us as having either bearing. But there is evidence tending to show' that Hamilton had owned this automobile; had sold it some three months prior to the transaction in question for $2,000/; 'that Upper gave Hamilton his note, due on or before two years from date,
The negotiations for the purchase of the car by the county were carried on during the preliminary stages between Dr. Richardson, the county physician, who desired an automobile ambulance for his use, and Upper. It was agreed that the car should be overhauled and repaired, a new ambulance body built upon it, a number of other changes and improvements made upon the car, all of which were specified by Dr. Richardson, agreed to by Upper, and the price for the car as so rebuilt and repaired to be $3,000. Mr. Upper and Dr. Richardson took the car to the court house to have the commissioners inspect it and see if it met their approval. Mr. Hamilton and one other commissioner inspected it and approved it. One of the commissioners refused to either inspect it or approve it. The improvements, repairs and changes cost something over $700. Under the evidence as a whole, it cannot be said that the price to be paid for the car, when adjusted to the needs and requirements of the county physician, was excessive and fraudulent.
The burden of proof was upon respondent to sustain his allegations of fraud. Pedersen v. Seattle Consol. St. R. Co.,
By the stipulation of the parties, the findings of the jury which are supported by any competent evidence are as controlling as they would be in any common law jury case. Upon the jury’s findings upon the first and second interrogatories, the judgment should have been entered for appellant. We adopt these findings as being amply supported by the evidence, and ignore the third finding as being uncertain and inconclusive.
Judgment is reversed, and the cause is remanded with instructions to enter judgment for the appellant as prayed.
Morris, C. J., Fullerton, Mount, and Main, JJ., concur.
On Petition foe Rehearing.
[Decided October 7, 1915.]
Holcomb, J.—By reason of certain arguments and statements in respondent’s petition for rehearing herein, some response seems to be required.
We had not thought it necessary, in the original opinion, to enter into any discussion as to the construction of special verdicts or findings of a jury. In 1693, it was announced, in Duncombe v. Wingfield, Hob., 254, by Chief Justice Hobart, that, by the common law,
“It is a dangerous thing to construe a verdict larger, or otherwise than upon a sure ground, for it subjects them to an attaint.”
We have no desire or intention of “exonerating Hamilton of fraud,” or any one else, if competently and legally shown to be guilty. We attempted to apply the law to the case presented, in a brief, concise manner. Much was omitted that was considered elementary or obvious. We consider it elementary law that, when one sells a chattel, either for cash or on credit, ahd delivers unconditional possession to the purchaser, he parts with the title thereto absolutely, and with every beneficial interest' therein'. ■ Hamilton could have conditionally Sold the automobile
The jury, in its second finding, found that Hamilton was not the owner, when sold to the county, of the automobile which, in the first finding, it found had been sold by Upper to the county. These were findings of the ultimate facts, and were and are conclusive upon the trial court and this court. It had been stipulated by the parties that the special findings of the jury should be binding upon the parties and the court. It is universally settled that the verdict of a jury, supported by any competent evidence and untainted by any illegal influence, is conclusive. This applies to special as well as to general verdicts.
The assertion of respondent that we “declined to review the testimony” is unwarranted. It was stated in the original opinion that “We shall not discuss at great length the facts adduced at the trial, for the reason that . . . the findings of the jury upon the first and second special interrogatories are determinative of all the other questions.” But the facts adduced at the trial were thoroughly examined, not merely from the abstract, but from the entire statement of facts. We do not know what the real truth of the matter is, but we know that there was competent evidence, as shown by the record of the facts, to sustain the first and second findings, untainted by any error or illegal influence upon the same, and they must, therefore, be deemed by all concerned as conclusive of the ultimate facts. Had respondent desired, it was easy to propound a simple interrogatory asking the jury whether the transaction between Hamilton and Upper was a real or a pretended sale. If the third finding is construed as respondent would construe it—that it meant, and was so intended by the jury, that “Hamilton retained some beneficial interest” in the automobile, then it is inconsistent with the second, and there is nothing but the merest speculation, conjecture, and surmise, and no “dear and convincing
Rehearing is denied.
Morris, C. J., Mount, Main, and Fullerton, JJ., concur.