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(95 Wash. 171, 163 Pac. 395.)

out in which you used in order to win; you think you will stand me off. Well, if your word is any good, I will test it. Does it ever present itself to you how you and your brother used my name in the deal, stating I was the first one who ever gave you the evidence and blamed everything on me, when I can swear that you knew all about it before? But that doesn't matter now."

It

As we read this letter, it adds nothing to the story of O'Neill. rather detracts from it. It is not the declaration of a dispassionate, disinterested man. It is self-serving. It is more likely that it is the resource of an admittedly revengeful man. He knew, when he wrote the letter, that one of the defenses was that the action had not been brought in time. The paragraph relied on and accepted by the court stands out boldly as an invitation to buy his peace, with the assurance that, if it were bought, he would not carry his wares (which he afterwards did) to the respondents, he knowing that the merit of the case had been decided by the superior judge against respondents, and that their last chance was the Statute of Limitations. The letter can have no other meaning, for, on the same day, O'Neill wrote Mr. Cannon, attorney for appellants, complaining that W. J. Langley was not keeping his agreement, and asking him to "look out for (his) interest in this matter." If appellants did not. win, he would have no interest. The only inference to be drawn from his letters is that, if his interests were looked out for, all would be well. It would still be possible for appellants to prevail. If he were not so assured, then "look out." The whole correspondence shows a willingness on the part of O'Neill to conceal the "truth" as he now asserts it to be, the light of which did not dawn upon him until respondents had offered to pay, or had actually paid him, $7,500 which they had formerly refused to pay, and which, so far as the record shows, he had not sought to recover by resort to any legal pro

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credible witnesses or by circumstances that cannot be denied.

Another witness, Hughes, testifies that appellants knew all the time that respondents had retained an interest. Of this witness, the trial judge says: "I was not strongly impressed by the testimony of Hughes. Not that I do not believe him credible, but the character of the conversation he testified to was such that it would not be right to plaintiffs to attach too great weight to it. I haven't his testimony before me, and cannot detail what he said, but I have a distinct impression of the atmosphere (if I may so call it) left by his appearance upon the stand, which was that too great weight should not be given his testimony that plaintiffs knew that defendants had retained stock."

While friendly, appellants had no business relations or interests with this witness, yet, according to his testimony, conveniently, in season and out of season, they found frequent occasion to tell him—he was, so far as we can see, equally friendly to the respondents-that their case depended upon the concealment of a fact. His testimony is so incredible and improbable, and the "atmosphere" is so clearly carried into the printed page, that we have no hesitancy in following the trial judge. To believe him, we would have to say that appellants were fools. This, counsel for respondents do not assert.

The decision of the trial judge is made to rest entirely upon the testimony of a witness, Hayes. Of him and his testimony, the court says: "Hayes's testimony is in the form of a deposition. Hayes appears to

close,

be the one man whom plaintiffs feared. They evidently knew that he had possession of facts that would damage them if they were known. I do not see how the telegrams, letters, and manifest solicitude of plaintiffs and their counsel and of O'Neill can mean anything else than that they feared that he might tell what he knew. His testimony is in no wise impeached. It stands here as that of a credible witness. He testifies to a friendship of long standing between himself and W. J. Langley, and to a close, daily, and intimate relationship between them and their families in the summer of either 1907 or 1908 in California. He had bought forty shares of the coal stock from defendants in 1907. He had known Langley years before in the Cœur d'Alenes. Most naturally, they discussed the coal property, and Hayes said they did daily and at length. He testifies that W. J. Langley knew all along that the defendants had stock. As against such evidence, the denials of plaintiffs do not preponderate."

It seems to us that Hayes, like Hughes, "doth protest too much." But, since the trial judge has rested his decision upon his testimony, it is only fair to court and counsel that we should explain why we cannot subscribe to his conclusion. The trial judge frankly states that he accepted Hayes's testimony because he was "the one man whom plaintiffs feared," and because "they evidently knew that he had possession of facts that would damage them if they were known." His holding is based upon the assumption that Hayes might tell what he afterwards told upon the witness stand, that appellants knew Page and Devlin had retained an interest in the Corbin Coal & Coke Company long before the action was begun. By reference to "telegrams and letters," the court inferentially charges that appellants and their attorney, Mr. Cannon, attempted, through the aid and connivance of O'Neill, to make way with the witness at a time when respond

ents and their attorney were about to take take his deposition at Los

Angeles.

The court's conclusion is wrong for two reasons: Hayes testifies that W. J. Langley knew all along that defendants had stock. This is not denied by appellants. Indeed, their case is, in a way, predicated upon the fact that they knew all along that respondents had stock in the company. Evidence tending to show a stock holding in no way sustains the essential fact that appellants knew that respondents had retained a one-tenth interest. W. J. Langley testifies that, long before Hayes became a figure in this piece of litigation, Page and Devlin, one or both, told him that Mr. Corbin was hard up when he bought the mine, and to help him (Corbin) out they had put back $47,000; that he, Langley, talked to them about buying some of the stock, and they said it could not be obtained for "love or money." The mine, by that time, had come to be of great promise. The real issue is whether appellants knew that respondents, when they took an option, did so on their own account, or intending to retain an interest when they conveyed to Mr. Corbin.

The charge, openly made by counsel, that appellants and their attorney endeavored to put Hayes beyond the reach of respondents, so that his testimony could not be taken, brings us to the second reason for rejecting the court's holding. When considered in the light of all the facts and the explanations of the parties, the correspondence will as readily bear an interpretation in favor of honesty as of dishonesty. Respondents were in no way interrupted in their purpose to see and talk with Hayes, and to take his deposition if they wanted it, by any act of appellants. Up to the time of O'Neill's defection, the thing that appellants relied on, so far as Hayes was concerned, was that they understood that Hayes had bought stock of Page and Devlin, and that they had told him not to say anything about it.

(95 Wash. 171, 163 Pac. 395.)

The telegram, upon which the charge that appellants sought to make way with Hayes is based, is: "Case almost tried and then continued to take deposition of Hayes in your city. Meet Hayes and fix things up until Billy gets there."

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That this telegram must be construed in the light of the statement of counsel as to what they expected to prove by him (hereinafter noted) is made certain by reference to a letter written to O'Neill the next day by Mr. Cannon, in which he says: Keep in in mind seeing Hayes, after Langley reaches you, these points. Hayes was told not to mention the fact that he had his stock to anyone, perhaps because it might become assessable if the transfer was made upon the books of the Corbin Coal & Coke Company. I cannot see how Hayes can hurt us much, but I don't believe he will hurt us at all if he is carefully handled. Langley will explain the situation to you fully. Kindest regards."

Counsel for respondents seem to have selected the circumstance that Hayes went to Riverside, California, with O'Neill, after he had been informed by wire that counsel for respondents was going to Los Angeles to take his deposition, as the primal point in their defense of the decree. Upon O'Neill's bare statement, unsupported and disputed by the events transpiring at the time, they assume that appellants and their counsel attempted to get Hayes out of the way so his testimony could not be taken, at a time when counsel for respondents was in California with an open commission to take his testimony. They cite apt authority to sustain their contention that one who would obstruct justice must bear the burden of adverse presumptions. With this principle, we have no quarrel. But before the presumption follows, the fact must be established. On the one hand, we have O'Neill's testimony. He is thoroughly discredited as a witness. On the other hand, we have the fact that Hayes makes no contention that he

was asked to get out of the way. He was in no sense concealed. He was moving at his own volition. Furthermore it is explained that Hayes was given to the excessive use of intoxicating liquors and periodical sprees; that the purpose of the correspondence was to keep him sober so that he could tell the truth as counsel for appellants understood it to be, and no more than the truth, when sworn as a witness. That Hayes would swear to the fact that appellants knew that respondents had retained one tenth of the property was not, up to that time, suggested by anyone.

O'Neill, following the admitted flagitious workings of his mind, says that he construed the telegram as notice to get Hayes out of the way. When Langley arrived, O'Neill reported that neither he nor a detective (Hughes) had been able to locate Hayes. Within an hour, Hayes came to Langley's house of his own accord. Langley says, and he is borne out by Hayes, that Hayes said he was going to Riverside to recover a disabled automobile which he had left at Riverside for repair. O'Neill says he went along to keep track of Hayes and keep him out of the way. If he did, he failed utterly, for Mr. Devlin had no trouble in locating him. Hayes maintained a home. Devlin telephoned him at Riverside about 7 o'clock the next morning. He told Hayes that his attorney was at Los Angeles and they wanted his deposition. Hayes replied that he would return at once, which he did, driving his own car, which had been repaired. He met Langley in Los Angeles. They rode together to Santa Monica, where both he and Langley lived, and where Devlin, Page, and one of their attorneys were waiting for Hayes.

Counsel and respondents spent a part of an afternoon and a whole evening in the company of Hayes. His deposition was not taken.

When the case was on for trialthe first trial-and about to close, counsel said:

Also we desire to take the deposi

tion of Mr. and Mrs. J. J. Hayes, who are down there, Mr. Hayes being one of the parties that is fully familiar with this business and related in interest with the parties.

Mr. Cannon: Now, if the court please, you see we are opening the case again.

Mr. Robertson: I am willing to conform to your request.

Mr. Cannon: Now, let us look at it. Counsel wants four witnesses to go on.

Mr. Robertson: I stated, if you are going down there, I don't care who else that you have down there. Mr. Hayes was to be (here) there. We requested him to come, and he was taken sick.

Mr. Cannon: Well, tell us what his testimony is.

Mr. Robertson: Well, his testimony that he was one of the parties interested in this forty shares of stock, and that he has discussed the matter time and time again with W. J. Langley, and Mr. Langley knew that he got that interest from Mr. Devlin, and he has known that, I think, since 1906, along in there,since 1907,--and talked the matter over from time to time.

Mr. Cannon: I am afraid we will try this case over again.

Mr. Robertson: That is the only additional deposition I want.

Counsel had previously said: "I don't know whether it is due to me to make a statement, but I think probably I should do so. I went to California, and Mrs. Hayes was too ill to be consulted at all. Mr. Hayes was out when I got there, in a different part of the state with Mr. O'Neill, the party who has been mentioned in this testimony. I was unable to talk with him over this case until shortly before the deposition was taken, and he has stated that he was friends of both parties, and upon consideration there I concluded that I would not take his testimony, the full scope of which he never gave me."

We have no reason to disbelieve counsel. Hayes is, therefore, put in one of two positions equally dis

creditable to him. He testifies sev

eral times over that he had told counsel all that he now swears to at the time he met counsel and respondents in California, and that he did not want to give his deposition because he was friendly to both sides. He says he told Devlin in Spokane, after the suit was started and "before they went into court," that at least "Billy Langley knew that they (respondents) had retained an interest." We do not believe Hayes, when he says he told counsel in California that the Langleys knew all the time that respondents had retained an interest when the control of the property was made over to Corbin, or that he told Devlin in Spokane as early as February, 1912. If he had done so, counsel would not have made the statement to the court that he did.

There

would have been no occasion for it. Such testimony was vital, if obtainable, and we have no doubt that his testimony would have been compelled, or that he would have been subpoenaed to attend the first trial while in the jurisdiction of our courts.

We find nothing in the record, other than Hayes's present statement, to sustain the suggestion that the Langleys had often said to Hayes that they knew long years ago that respondents had retained an interest. It is contradicted by every concomitant circumstance in the case. The contention that appellants and their counsel attempted to get Hayes out of the way makes its first appearance in this case after O'Neill had been won over to the other side because of what he conceived to be ill treatment. His disclosure of what he now says is the truth, notwithstanding his former declaration to the contrary, was not made until after the court had practically decided the case upon its merits against the contentions of respondents. The finding that Hayes was the one man whom appellants seemed to fear rests entirely on the statement of O'Neill that he endeavored to suppress the testimony of

(95 Wash. 171, 163 Pac. 395.)

Hayes, and upon Hayes's subsequent declaration that appellants knew of the fraud. Hayes explains his position, saying: "I did not want to interfere in this affair until I happened to come here (Spokane) on other business."

He also accounts for changing his mind:

A. I will tell you why. I had to come to Spokane here; there is a suit pending against me here, which is a mistake. I had paid it. I had brought up the evidence with me and had a letter with me, a receipt with me, and the suit is now being dismissed, and while I was up here I had a talk with Mr. Devlin and Mr. Robertson; and another reason I decided to give my testimony is, I felt as though the Langley boys had not been doing the right thing in the case from the conversations I had had in the past, and while I was here they asked me to make it, and I said, "Yes."

We have weighed the testimony carefully. With the testimony of O'Neill and Hughes rejected, the decree must rest, if permitted to stand, upon the testimony-or, rather, not upon the whole testimony, but upon one assertion of Hayes-that appellants knew of the retention of a stock interest by respondents. The assertion does not square with the facts or probabilities as disclosed by other witnesses or by Hayes himself. It comes late. His delay is but carelessly accounted for. His reason for throwing over his friendship for both sides in favor of the one does not bear the earmarks of truth, especially so when he admits that, just before he gave his testimony, a Mr. Roberts, the agent who made the deal in Mr. Corbin's behalf, and who was a participant in the division of the reserved interest, made his credit good to the extent of several hundred dollars at a local bank in Spokane. He was in financial distress at the time.

There is nothing in the record that

would warrant an overturning of the equities of the case upon the assumption that appellants "feared" Hayes. W. J. Langley frequently loaned him money, which he repaid as a debt. Within six months before Hayes gave his testimony, he says he asked W. J. Langley, in Los Angeles, for a loan of $5 and he refused it, "and I was broke." It would seem, if Langley feared this man, he would not have taken the chance of incurring his displeasure at the risk of a loss so slight as $5. "Testimony testimony fairly explained explained away. away and contradicted by circumstances in evidence is not concluMoore, sive upon court or jury.' Facts, § 92.

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See also Gosline v. Dryfoos, 45 Wash. 396, 88 Pac. 634; Keene v. Behan, 40 Wash. 505, 82 Pac. 884; Coey v. Darknell, 25 Wash. 518, 65 Pac. 760.

But, granting that appellants and counsel were afraid of Hayes, there is as much or more in the record to sustain a finding that the fear was that Hayes would be unduly influenced by respondents as that he would testify as he did. Hayes was habitually hard up, and was in the habit of going on occasional sprees. Nothing is offered that suggests that he is a fixed or dependable character. The elusiveness of O'Neill, which is now so clearly proved, is enough to warrant a belief that respondents were quite able to take care of themselves in dealing with witnesses.

Mr. O'Neill has not only been content to be upon both sides of this case, but in his zeal he is willing to make himself a party to the eloignment of a witness, a crime against the administration of justice, and to sustain his position he imposes, by his unsupported testimony, the same crime upon at least one of the appellants, and upon one of their attorneys. "These hard imputations, being unsupported by facts, do not add to the credibility of the witness who makes them." The Bee, 1 Ware,

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