Zonig v. Boehme

Rudkin, C. J.

Between the 1st day of September, 1901, and the 4th day of January, 1904, the plaintiff, Zonig, and one Dennis Adolph Boehme, since deceased, were copartners under the firm name and style of D. A. Boehme, and were ■engaged in business as importers, packers, and dealers in leaf tobacco, and manufacturers of cigars, in the city of Seattle. On the last named date, the two partners had a full accounting of the partnership business, and the sum of $1,386.50 was found due from Boehme to the plaintiff. Upon the statement of their account, Boehme promised to leave a check for this balance with a Mr. Wray, who had acted as attorney for the parties during the previous year, on the following morning. Two weeks or a month thereafter Boehme and wife left the state and did not return until the month of April, 1906. After their return they lived at O’Brien, in King county, until the death of the husband in February, 1908. After Ins death, the above claim was presented to the executrix of his estate, and was disallowed. The present action was thereupon instituted to establish the amount of the claim against the estate. Trial was had before the court without a jury, and from a judgment in favor of the defendant, the plaintiff has appealed.

The sole issue in the case was that of payment, as we think the original indebtedness was clearly established. One of the parties to the transaction is dead, and on grounds of public policy, the statute has sealed the Kps of the other, so that the testimony on the issue of payment is unsatisfactory. The parties were compelled to resort to testimony more or less circumstantial in its nature to establish their respective claims, but from the testimony adduced we think the court was warranted in resolving the issue of payment in favor of the respondent. While it satisfactorily appears that the check was not left with Mr. Wray as agreed upon, the only reason assigned for making payment in that way was because of the fact that the appellant was about to leave the city, and if, as a matter of fact, the parties met in person at a later date, the fact that the check was not left with Mr. Wray is of little moment. There was competent evidence tending to show that the parties did so meet. One of the witnesses for the appellant testified that he saw the parties together at or about this time, and heard some conversation in relation to a check, if, indeed, he did not see a check pass from the one to the other. The wife of the deceased testified that the appellant called at their home in the city of Seattle several days after the check was to be delivered to Mr. Wray, and stated to her husband that he had not been paid sufficient money. The parties again went over their books and agreed that the previous settlement was correct in- every particular. When we consider these facts and the long delay in the prosecution of the claim, which was by no means excusable, we think the findings of the court below are justified by the evidence, and its judgment is accordingly affirmed.

Dunbar, Crow, Morris, and Chadwick, JJ., concur.