116 Wash. 102 | Wash. | 1921
By this appeal the appellant endeavors to reverse a judgment of dismissal by the trial court upon conflicting evidence. The pleadings are voluminous and not necessary to set forth here. The object of the action, as stated in the appellant’s notice of lis pendens, was to ‘ ‘ establish a trust, or to vacate certain execution sales of real property, or to compel the
Appellant admits that, although the decision of the lower court was, as it believes, based upon untenable ground, yet, the case being of equitable cognizance, its trial here is de novo, and the burden rests upon the appellant to show that it proved the agency by a preponderance of the evidence.
The. burden also rested upon the appellant in the lower court to prove the agency by a preponderance of the evidence. The lower court saw and heard the witnesses and was much better able to judge of the credibility than are we.
The evidence on behalf of appellant was to the effect that, about the latter part of April, 1919, J. O. Heitman, president, general manager, and principal stockholder of the Fidelity Rent & Collection Company, went to W. R. Sturley, assistant treasurer and general manager of appellant, at his place of employment in the Bank of California, in Tacoma, and interviewed him in regard to lots 11 and 12, block 1016, map of New Tacoma, situated at South Eleventh street and Yakima avenue; that Heitman represented to him that appellant had lost certain other property in Tacoma by foreclosure, when Heitman could have sold its equity and saved something for it, had it been placed in Heitman’s hands for sale, and that the 11th street and Yakima avenue property would go the same way unless steps were taken to realize on the equity before it was too late; that Sturley stated to him that there were two judgments which were liens against the property—one
On the other hand, Heitman testifies that he was for some time authorized by Mrs. Beckwith, a woman of some means, residing in Rochester, New York, to invest some money for her in Tacoma property such as Heitman would recommend; that, prior to his calling upon Sturley, he had discovered the condition of the three parcels of property involved herein, and had an attorney investigate the judgment liens against them, who investigated and reported the same prior to April 17, 1919; that he then went to Sturley and offered one thousand to fifteen hundred dollars for a quitclaim deed “on behalf of a client of his”, which Sturley refused. Heitman had also, prior to going to Sturley, inquired of Mr. Hellar, a representative of the National Bank of Tacoma, to learn for what price the bank would release or assign its deficiency judgment, but had not yet received the information from the bank, and after Heitman’s interview with Sturley, Sturley was notified by Mr. Hellar the next day that Heitman had tried to buy the judgment and that the bank had declined. At about the same time—just prior to, or just after, his visit to Sturley—Heitman went to Seattle and interviewed Mrs. Parker relative to the purchase of her judgment. She asked $250, but within three or four days she went to Tacoma and visited Heitman, when he offered her $225 for an assignment of the judgment, which she accepted. This assignment was drawn up but the name of the purchaser left blank. Mrs. Parker, before executing the assignment, asked the name of the purchaser and was thereupon told that it was Ernestine S. Beckwith, and that name was written into the instrument. The money was paid to Mrs. Parker by check of
Bespondent Beckwith’s brother had expected to be in Tacoma in time for the sale, but did not arrive until early in December following, when he repaid the Fidelity Bent & Collection Company the money advanced in the purchase of the judgment and making the sale, amounting to $520.80. The notice of the levy and sale, showing respondent Beckwith as owner of the judgment, was published in the Tacoma Daily Index, a paper of very general circulation among banks and business houses in Tacoma. Heitman was the active manager of the Fidelity Bent & Collection Company, and had been for about sixteen years, and had never operated individually as a real estate broker.
Appellant first complains that the court erred in permitting the respondents to show that an account was opened upon the books of the Fidelity Bent & Collection Company between it and Ernestine S. Beckwith on May 1, 1919, charging the latter with the $225 paid for the assignment of the Parker judgment.
The closing of the negotiations with Mrs. Parker, the execution of the assignment, the payment of the purchase price, and the entry of that payment in the company’s cash book and ledger, were all parts of the same transaction, and were all parts of the res gestae. Thé
The book entries were, therefore, properly admitted and were clearly competent, and tended to corroborate the testimony of Heitman that he individually did not attempt to act as agent; that the agent in the transaction was the Fidelity Rent & Collection Company, and that it was the agent of Ernestine S. Beckwith, at the time appellant alleged Heitman to? be its agent. Heitman was also corroborated by the attorney employed to investigate the deficiency judgment and liens against the property, as being in April, 1919, prior to the 17th. Such evidence all tends to controvert the testimony of appellant to show that Heitman was the agent of appellant. The burden of proof being upon appellant to establish the'agency by a fair preponderance of the evidence, we agree with the lower court that it failed to do so. We should be inclined to so hold had the trial court found otherwise. This being our view of the
The judgment is affirmed.
Parker, C. J., Bridges, Mackintosh, and Fullerton, JJ., concur.