Evidence

(95 Wash, 171, 163 Pac. 395.) out in which you used in order to ceeding. The experience of the ages win; you think you will stand me off. sustains the legal conclusion that, Well, if your word is any good, I where the truth is made to depend will test it. Does it ever present it- upon the pecuniary interest of a witself to you how you and your broth- ness who has no interest in the suber used my name in the deal, stating ject-matter of the suit, his utterI was the first one who ever gave ances wear a cloak of suspicion, and you the evidence and blamed every- they should not be thing on me, when I can swear that accepted unless the credibilityyou knew all about it before? But taint is removed by pecuniary that doesn't matter now."

the testimony of As we read this letter, it adds credible witnesses or by circumnothing to the story of O'Neill. It stances that cannot be denied. rather detracts from it. It is not Another witness, Hughes, testithe declaration of a dispassionate, fies that appellants knew all the time disinterested man. It is self-serv- that respondents had retained an ining. It is more likely that it is the terest. Of this witness, the trial resource of an admittedly revenge- judge says: "I was not strongly ful man. He knew, when he wrote impressed by the testimony of the letter, that one of the defenses Hughes. Not that I do not believe was that the action had not been him credible, but the character of brought in time. The paragraph re- the conversation he testified to was lied on and accepted by the court such that it would not be right to stands out boldly as an invitation to plaintiffs to attach too great weight buy his peace, with the assurance to it. I haven't his testimony before that, if it were bought, he would not me, and cannot detail what he said, carry his wares (which he after- but I have a distinct impression of wards did) to the respondents, he the atmosphere (if I may so call it) knowing that the merit of the case left by his appearance upon the had been decided by the superior stand, which was that too great judge against respondents, and that weight should not be given his testheir last chance was the Statute of timony that plaintiffs knew that deLimitations. The letter can have no fendants had retained stock." other meaning, for, on the same day, While friendly, appellants had no O'Neill wrote Mr. Cannon, attorney business relations or interests with for appellants, complaining that w. this witness, yet, according to his J. Langley was not keeping his testimony, conveniently, in season agreement, and asking him to "look and out of season, they found freout for (his) interest in

quent occasion to tell him/he was, this matter." If appellants did not. so far as we can see, equally friendly win, he would have no interest. The to the respondents—that their case only inference to be drawn from his depended upon the concealment of a letters is that, if his interests were fact. His testimony is so incredible looked out for, all would be well. It and improbable, and the "atmoswould still be possible for appellants phere” is so clearly carried into the to prevail. If he were not so as- printed page, that we have no hesisured, then "look out." The whole tancy in following the trial judge. correspondence shows a willingness To believe him, we would have to on the part of O'Neill to conceal the say that appellants were fools. “truth” as he now asserts it to be, This, counsel for respondents do not the light of which did not dawn up- assert. on him until respondents had of. The decision of the trial judge is fered to pay, or had actually paid made to rest entirely upon the teshim, $7,500 which they had formerly timony of a witness, Hayes. Of him refused to pay, and which, so far as and his testimony, the court says: the record shows, he had not sought "Hayes's testimony is in the form to recover by resort to any legal pro- of a deposition. Hayes appears to

a

be the one man whom plaintiffs ents and their attorney were about feared. They evidently knew that to take his deposition at Los he had possession of facts that Angeles. would damage them if they were

The court's conclusion is wrong known. I do not see how the tele- for two reasons: Hayes testifies that grams, letters, and manifest solici- W. J. Langley knew all along that tude of plaintiffs and their counsel defendants had stock. This is not and of O'Neill can mean anything denied by appellants. Indeed, their else than that they feared that he case is, in a way, predicated upon might tell what he knew. His testi- the fact that they knew all along mony is in no wise impeached. It that respondents had stock in the stands here as that of a credible wit- company. Evidence tending to show ness. He testifies to a friendship a stock holding in no way sustains of long standing between himself the essential fact that appellants and W. J. Langley, and to a close, knew that respondents had retained daily, and intimate relationship be- a one-tenth interest. W. J. Langley tween them and their families in the testifies that, long before Hayes besummer of either 1907 or 1908 in came a figure in this piece of litigaCalifornia. He had bought forty tion, Page and Devlin, one or both, shares of the coal stock from de- told him that Mr. Corbin was hard fendants in 1907. He had known up when he bought the mine, and to Langley years before in the Caur help him (Corbin) out they had put d'Alenes. Most naturally, they dis- back $47,000; that he, Langley, cussed the coal property, and Hayes talked to them about buying some of said they did daily and at length. He the stock, and they said it could not testifies that W. J. Langley knew all be obtained for "love or money.” along that the defendants had stock. The mine, by that time, had come to As against such evidence, the de- be of great promise. The real issue nials of plaintiffs do not preponder- is whether appellants knew that reate.”

spondents, when they took an opIt seems to us that Hayes, like tion, did so on their own account, or Hughes, "doth protest too much.” intending to retain an interest when But, since the trial judge has rested they conveyed to Mr. Corbin. his decision upon his testimony, it is The charge, openly made by counonly fair to court and counsel that sel, that appellants and their atwe should explain why we cannot torney endeavored to put Hayes besubscribe to his conclusion. The yond the reach of respondents, so trial judge frankly states that he ac- that his testimony could not be takcepted Hayes's testimony because he en, brings us to the second reason was “the one man whom plaintiffs for rejecting the court's holding. feared,” and because “they evident- When considered in the light of all ly knew that he had possession of the facts and the explanations of the facts that would damage them if parties, the correspondence will as they were known." His holding is readily bear an interpretation in based upon the assumption that favor of honesty as of dishonesty. Hayes might tell what he afterwards Respondents were in no way intertold upon the witness stand, that ap- rupted in their purpose to see and pellants knew Page and Devlin had talk with Hayes, and to take his depretained an interest in the Corbin osition if they wanted it, by any Coal & Coke Company long before act of appellants. Up to the time of the action was begun. By reference O'Neill's defection, the thing that to "telegrams and letters,” the court appellants relied on, so far as Hayes inferentially charges that appellants was concerned, was that they underand their attorney, Mr. Cannon, at- stood that Hayes had bought stock tempted, through the aid and con- of Page and Devlin, and that they nivance of O'Neill, to make way with had told him not to say anything the witness at a time when respond about it.

(95 Wash. 171, 163 Pac. 395.) The telegram, upon which the was asked to get out of the way. He charge that appellants sought to was in no sense concealed. He was make way with Hayes is based, is: moving at his own volition. Fur"Case almost tried and then con- thermore it is explained that Hayes tinued to take deposition of Hayes was given to the excessive use of in your city. Meet Hayes and fix intoxicating liquors and periodical things up until Billy gets there." sprees; that the purpose of the cor

That this telegram must be con- respondence was to keep him sober strued in the light of the statement so that he could tell the truth as of counsel as to what they expected counsel for appellants understood it to prove by him (hereinafter noted) to be, and no more than the truth, is made certain by reference to a let. when sworn as a witness. That ter written to O'Neill the next day Hayes would swear to the fact that by Mr. Cannon, in which he says: appellants knew that respondents

Keep in mind seeing had retained one tenth of the propHayes, after Langley reaches you, erty was not, up to that time, sug

, these points. Hayes was told not to gested by anyone. mention the fact that he had his O'Neill, following the admitted stock to anyone, perhaps because it flagitious workings of his mind, might become assessable if the

says that he construed the telegram transfer was made upon the books as notice to get Hayes out of the of the Corbin Coal & Coke Company. way. When Langley arrived, I cannot see how Hayes can hurt O'Neill reported that neither he nor us much, but I don't believe he will a detective (Hughes) had been able hurt us at all if he is carefully to locate Hayes. Within an hour, handled. Langley will explain the Hayes came to Langley's house of situation to you fully. Kindest re- his own accord. Langley says, and gards."

he is borne out by Hayes, that Hayes Counsel for respondents seem to said he was going to Riverside to have selected the circumstance that

recover a disabled automobile which Hayes went to Riverside, California, he had left at Riverside for repair. with O'Neill, after he had been in- O'Neill says he went along to keep formed by wire that counsel for re- track of Hayes and keep him out of spondents was going to Los Angeles the way.

the way. If he did, he failed utterto take his deposition, as the primal ly, for Mr. Devlin had no trouble in point in their defense of the decree. locating him. Hayes maintained a Upon O'Neill's bare statement, un- home. Devlin telephoned him at supported and disputed by the Riverside about 7 o'clock the next events transpiring at the time, they morning. He told Hayes that his atassume that appellants and their torney was at Los Angeles and they counsel attempted to get Hayes out wanted his deposition. Hayes reof the way so his testimony could plied that he would return at once, not be taken, at a time when counsel which he did, driving his own car, for respondents was in California which had been repaired. He met with an open commission to take his Langley in Los Angeles. They rode testimony. They cite apt authority together to Santa Monica, where to sustain their contention that one both he and Langley lived, and who would obstruct justice must where Devlin, Page, and one of their bear the burden of adverse presump- attorneys were waiting for Hayes. tions. With this principle, we have Counsel and respondents spent a no quarrel. But before the presump- part of an afternoon and a whole tion follows, the fact must be estab- evening in the company of Hayes. lished. On the one hand, we have His deposition was not taken. O'Neill's testimony. He is thor- When the case was on for trialoughly discredited as a witness. On the first trial—and about to close, the other hand, we have the fact that counsel said: Hayes makes no contention that he Also we desire to take the deposi

tion of Mr. and Mrs. J. J. Hayes, who creditable to him. He testifies sevare down there, Mr. Hayes being one eral times over that he had told of the parties that is fully familiar counsel all that he now swears to at with this business and related in in- the time he met counsel and reterest with the parties.

spondents in California, and that Mr. Cannon: Now, if the court he did not want to give his depoplease, you see we are opening the sition because he was friendly case again.

to both sides. He says he told DevMr. Robertson: I am willing to lin in Spokane, after the suit was conform to your request.

started and "before they went into Mr. Cannon: Now, let us look at court,” that at least “Billy Langley it. Counsel wants four witnesses to knew that they (respondents) had go on.

retained an interest.” We do not Mr. Robertson: I stated, if you believe Hayes, when he says he told are going down there, I don't care counsel in California that the Langwho else that you have down there. leys knew all the time that respondMr. Hayes was to be (here) there. ents had retained an interest when We requested him to come, and he the control of the property was made was taken sick.

over to Corbin, or that he told DevMr. Cannon: Well, tell us what lin in Spokane as early as February, his testimony is.

1912. If he had done so, counsel Mr. Robertson: Well, his testi- would not have made the statement mony that he was one of the parties to the court that he did. There interested in this forty shares of would have been no occasion for it. stock, and that he has discussed the Such testimony was vital, if obtainmatter time and time again with W. able, and we have no doubt that his J. Langley, and Mr. Langley knew testimony would have been comthat he got that interest from Mr. pelled, or that he would have been Devlin, and he has known that, I subpænaed to attend the first trial think, since 1906, along in there, while in the jurisdiction of our since 1907,--and talked the matter

courts. over from time to time.

We find nothing in the record, Mr. Cannon: I am afraid we will other than Hayes's present statetry this case over again.

ment, to sustain the suggestion that Mr. Robertson: That is the only the Langleys had often said to Hayes additional deposition I want.

that they knew long years ago that Counsel had previously said: “I respondents had retained an interdon't know whether it is due to me est. It is contradicted by every conto make a statement, but I think

comitant circumstance in the case. probably I should do so. I went to

The contention that appellants and California, and Mrs. Hayes was too

their counsel attempted to get Hayes ill to be consulted at all. Mr. Hayes out of the way makes its first apwas out when I got there, in a dif

pearance in this case after O'Neill ferent part of the state with Mr. had been won over to the other side O'Neill, the party who has been men- because of what he conceived to be tioned in this testimony. I was un- ill treatment. His disclosure of able to talk with him over this case what he now says is the truth, notuntil shortly before the deposi- withstanding his former declaration tion was taken, and he has stated

to the contrary, was not made until that he was friends of both parties, after the court had practically deand upon consideration there I con

cided the case upon its merits cluded that I would not take his tes- against the contentions of respondtimony, the full scope of which he ents. The finding that Hayes was never gave me.”

the one

man whom appellants We have no reason to disbelieve seemed to fear rests entirely on the counsel. Hayes is, therefore, put in statement of O'Neill that he endeavone of two positions equally dis- ored to suppress the testimony of (95 Wash. 171, 163 Pac. 395.) Hayes, and upon Hayes's subsequent would warrant an overturning of declaration that appellants knew of the equities of the case upon the asthe fraud. Hayes explains his po- sumption that appellants “feared” sition, saying: “I did not want to Hayes. W. J. Langley frequently interfere in this affair until I hap- loaned him money, which he repaid pened to come here (Spokane) on as a debt. Within six months before other business."

Hayes gave his testimony, he says he

asked W. J. Langley, in Los Angeles, He also accounts for changing his mind :

for a loan of $5 and he refused it,

"and I was broke.” It would seem, A. I will tell you why. I had to come to Spokane here; there is a

if Langley feared this man, he would

not have taken the chance of incursuit pending against me here, which is a mistake. I had paid it. I had

ring his displeasure at the risk of brought up the evidence with me and

a loss so slight as

-weighthad a letter with me, a receipt with $5. “Testimony testimony

a a me, and the suit is now being dis- fairly explained explained away. missed, and while I was up here I away and contradicted by circumhad a talk with Mr. Devlin and Mr.

stances in evidence is not concluRobertson; and another reason I de

sive upon court or jury." Moore, cided to give my testimony is, I felt Facts, $ 92. as though the Langley boys had not

See also Gosline v. Dryfoos, 45

Wash. 396. 88 Pac. 634: Keene v. been doing the right thing in the case from the conversations I had Behan, 40 Wash. 505, 82 Pac. 884; had in the past, and while I was

Coey v. Darknell, 25 Wash. 518, 65

Pac. 760. liere they asked me to make it, and I said, “Yes."

But, granting that appellants and

counsel were afraid of Hayes, there We have weighed the testimony is as much or more in the record to carefully. With the testimony of sustain a finding that the fear was O'Neill and Hughes rejected, the de- that Hayes would be unduly influcree must rest, if permitted to stand,

enced by respondents as that he upon the testimony—or, rather, not

would testify as he did. Hayes was upon the whole testimony, but upon habitually hard up, and was in the one assertion of Hayes—that appel- habit of going on occasional sprees. lants knew of the retention of a

Nothing is offered that suggests that stock interest by respondents. The he is a fixed or dependable character. assertion does not square with the The elusiveness of O'Neill, which is facts or probabilities as disclosed by now so clearly proved, is enough to other witnesses or by Hayes himself. warrant a belief that respondents It comes late. His delay is but care- were quite able to take care of themlessly accounted for. His reason for selves in dealing with witnesses. throwing over his friendship for Mr. O'Neill has not only been conboth sides in favor of the one does tent to be upon both sides of this not bear the earmarks of truth, case, but in his zeal he is willing to especially so when he admits that, make himself a party to the eloignjust before he gave his testimony, ment of a witness, a crime against a Mr. Roberts, the agent who made the administration of justice, and to the deal in Mr. Corbin's behalf, and sustain his position he imposes, by who was a participant in the divi. his unsupported testimony, the same sion of the reserved interest, made crime upon at least one of the appelhis credit good to the extent of sev- lants, and upon one of their attoreral hundred dollars at a local bank neys. “These hard imputations, bein Spokane. He was in financial dis- ing unsupported by facts, do not add tress at the time.

to the credibility of the witness who There is nothing in the record that makes them.” The Bee, 1 Ware,