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mon-law rule prevails unless the contrary be shown.'” The quotation which the above text-writer makes from the Supreme Court of the United States was taken from the opinion in Edwards v. United States, 103 U. S. 471, 26 L. Ed. 314. That decision was rendered in the year 1880, after most of the decisions to which reference has hereinbefore been made were rendered. The opinion is an able and exhaustive one upon the subject now before us, in which it was held that the common-law rule which requires the acceptance of a resignation in order to create a vacancy is in force unless the rule has been discarded by statute. The reasons for the rule, as being founded in sound public policy, are well stated. Some of the decisions we have noticed above, including what seems to have been the pioneer case of United States v. John C. Wright, are criticised in the opinion. Among other things the court said: “As civil officers are appointed for the purpose of exercising the functions, and carrying on the operations of government, and maintaining public order, a political organization would seem to be imperfect which should allow the depositaries of its power to throw off their responsibilities at their own pleasure. This certainly was not the doctrine of the common law. In England a person elected to a municipal office was obliged to accept it and perform its duties, and he subjected himself to a penalty by refusal. An office was regarded as a burden which the appointee was bound, in the interest of the community and of good government, to bear. And from this it followed of course that, after an office was conferred and assumed, it could not be laid down without the consent of the appointing power. This was required in order that the public interests might suffer no inconvenience for the want of public servants to execute the laws.
This acceptance may be manifested either by a formal declaration, or by the appointment of a successor. “To complete a resignation,' says Mr. Willcock, 'it is necessary that the corporation manifest their acceptance of the offer to resign, which may be done by an entry in the public books, or electing another person to fill the place, treating it as vacant.' * . And, in view of the manifest spirit and intent of the laws above cited, it seems to us apparent that the common-law requirement-namely, that a resignation must be accepted before it can be regarded as complete was not intended to be abrogated. To hold it to be abrogated would enable every officeholder to throw off his official character at will, and leave the community unprotected. We do not think that this was the intent of the law." The decision in the Edwards Case was cited and followed in the following cases: People ex rel. v. Williams, 145 Ill. 573, 33 N. E. 849, 24 L. R. A. 492, 36 Am. St. Rep. 514; State ex rel, v. Clayton, 27 Kan, 442;1 Clark v. Board of Education of Detroit, 112 Mich. 141 Am. Rep. 418.
656, 71 N. W. 177; Coleman v. Sands, 87 Va. 689, 13 S. E. 148. The following further authorities also support the rule that a resignation must be accepted in order to complete it and effect the vacancy: State ex rel. Reeves v. Ferguson, 31 N. J. Law, 107; Hoke v. Henderson, 4 Dev. Law (N. C.) 1, 25 Am. Dec. 677; Steel v. Commonwealth, 18 Pa. 451.
We believe the decided weight of authority supports the rule that an acceptance of a resignation is necessary in order to relieve an officer of responsibility and to create a vacancy. Under the decision in the Edwards Case, such must be the rule where the common law in that regard has not been changed by a statute. We regard that decision as an authority we should follow, unless the common-law rule has been clearly changed by statute in this state. The relator calls our attention to section 567, 1 Ballinger's Ann. Codes & St., in which the following appears: “If any justice of the peace shall die, resign, or remove out of the precinct for which he may be elected, or his term of office be in any other manner terminated, the docket, books, records, and papers appertaining to his office, or relating to any suit, matter or controversy committed to him in his official capacity, shall be delivered to the nearest justice in the precinct. * * *" It is argued that the right of a justice of the peace to resign without an acceptance of his resignation is recognized by the above statute. We are not able to so read it. It simply directs what shall be done with his books and papers after the resignation of a justice has become effective. We are also referred to section 1548, 1 Ballinger's Ann. Codes & St., which provides, among other things, as follows: "Every office shall become vacant on the happening of either of the following events before the expiration of the term of such officer: (1) The death of the incumbent; (2) his resignation; (3) bis removal. * * We see nothing in the above which changes the common-law rule. It is true it is declared that an office shall become vacant upon the resignation of the incumbent, but nothing is said about the method of effecting a resignation. The silence of the statute in that regard should be construed to mean that the established common-law method still obtains, and that a resignation is not complete until it has been accepted by the appointing power. Our attention has not been called to any other statutes which the relator claims have effected a change in the common-law rule. In the absence of a clear statutory declaration of a purpose to change the rule, it should not be held that it has been changed. The longstanding rule is wholesome. It insures a continuous responsible incumbent in an office. One may not lightly throw aside responsibilities which he has assumed, and leave the public without an official when some possible emergency might make the existence of a qualified officer of great importance.
We think the court did not err in sustain- | scription of the property, was as follows: ing the demurrer, and the judgment is af- "That H. Constantine agrees to deliver all firmed.
farming implements, separators, etc., herein
after mentioned (itemized personal property) FULLERTOX, CROW, JOUXT, and ROOT, ,
free from all debt, mortgages or incumJJ., concur.
brauces. Upon delivery of said implements, stock, etc., free from all incumbrances, W.
V. ('aswell agrees to deliver to H. Constan(6 Wasb. 651)
tine a deed to property situated in Interbay, CONSTANTINE et ux. v. CASWELL et ux.
consisting of a house and two lots, known (Supreme Court of Washington. July 26, 1907.)
on the plat as lots 14 and 15, block 6, GilSPECIFIC PERFORMANCE - PERFORMANCE IN
man addition to the city of Seattle, this deed POSSIBLE -- DECREELXG PERFORMANCE OF
to be a warranty deed, the property to be MODIFIED CONTRACT. Where, in an action for the specific perform
free from all debt, mortgage or incumbrances ance of a coi tract to trade city lots for personal and taxes to be paid, this agreement to be property, performance was impossible because null and void if either party fails to live up of the sale of the personal property, under foreclosure proceedings the court had no power to
to the foregoing agreement." direct the performance of the contract by one Respondents alleged, and the court found, party upon the payment of a sum of money by a verbal agreement to have been made after the other in lieu of the personal property.
the written contract was executed, whereby [Ed. Yote.--For cases in point, see Cent. Dig.
it was understood that there was a mortgage vol. 44, Specific Performance, $ 405.]
to said Fish upon respondents' stock and Appeal from Superior Court, King Coun
farming utensils, and wherein it was alty; Arthur E. Griffin, Judge.
leged, among other things, that respondents Action by H. Constantine and wife against
were to pay and have said mortgage satisW. V. Caswell and wife. From a decree for
fied, and that the parties were to meet at plaintiffs. defendants appeal. Reversed and office of Mary J. Miller & Sons within a rearemanded.
sonable time to exchange papers, and that Shank & Smith, for appellants. Alfred respondents were to have certain papers with E. Parker and Chas. VcCann, for respond their attorney, Chas. McCann, in Seattle. ents.
Immediately after the signing of the writ
ten contract, respondent Constantine went ROOT, J. During August. 1905, respond
. , respond to Wenatchee to secure the release of the ents were the owners of certain live stock mortgage held by 0. G. Fish, and the parties and farming utensils and a leasehold interest hereto did not see each other again until in a farm near North Bend, King county, after this suit was brought.
brought. Constantine Wash. The lease, executed by Mary M. Mil- agreed to at once obtain a release of the ler & Sons, a corporation, provided that the Fish mortgage, but did not do so until about lessor should have a chattel mortgage upon six weeks after the contract was signed as the live stock and farm implements for un- aforesaid. Appellants claim that they were paid rental. At this time there was $3.50 not notified of the release of this mortgage due as rent and secured by said mortgage. until after the present suit was commenced. One 0. G. Fish of Wenatchee also held a On October 24th Constantine came to Seattle. chattel mortgage upon said personal proper- and Mr. Miller, secretary of Mary M. Milty. Appellants were the owners of two lots ler & Sons, a corporation, telephoned for Casin Gilman addition to the city of Seattle. well to come to Seattle. The latter did so Against these lots there was a judgment of the following day. Constantine says that record in the sum of $4, which had been he went to the train and did not see Caspaid but not satisfied of record. There was well alight therefrom, and then went to Milalso a lien for lumber furnished in the ler's office and informed him that Caswell sum of $10.35. During said month of Au- had not come. The latter, however, did argust these parties were negotiating for a rive in the forenoon of said day, and called trade, whereby respondents would exchange at Miller's office, waited awhile, and returntheir leasehold interest and the live stock ed again at 1:30 in the afternoon, and reand farming utensils for the two city lots mained several hours waiting for respondof appellants. There was an oral under- ent Constantine, who did not again appear standing between the parties, but not put at the office. That evening Constantine met in any written contract, that respondents' | Miller upon the street and was informed lessor would take a mortgage on the lets that Caswell was in town. He told Miller after respon lents received them, and release that it was not necessary for him (Constanits chattel mortgage upon the stock and tine) to remain, and that he had left the pafarming utensils. On the 1st day of Scp-pers with his attorney, one McCann. Contember, 1902, the negotiations resulted in a stantine and Caswell left Seattle that night written contract that day made and signed without seeing each other. In the meantime by respondent H. Constantine and appellant appellants had gone upon the farm and done W. V. Caswell, and it is conceded that their considerable work, in expectation that the wives consented to said contract. This agree- deal would be closed up. Year the middle ment, aside from formal parts and the ce- of December Caswell received a letter from
Constantine, which letter is not in evidence. To it he replied by letter of December 15th, in which he tendered a return of all personal property to respondents and declared the agreement null and void, turned over the personal property to a neighbor for respondents, and removed from the farm. The $350 rental due from respondents and secured by the mortgage to the Miller Company thereupon was not paid, and in January, 1906, the mortgage was foreclosed and the personal property sold. The present action was brought by respondents to enforce specific performance of the contract, alleging full performance upon their part and failure and refusal to fulfill on the part of appellants. The court made findings and conclusions favorable to plaintiffs, and entered a decree directing that, upon payment by plaintiffs to defendants, or into the registry of the court for them, in the sum of $330, the de fendants should make, execute, and deliver to plaintiffs a good and sufficient warranty deed for the city lots in question, and an abstract showing good title free from incumbrance, except a judgment of $44 and a lien of $10.83 upon the lots for claims found, and surrender immediate possession thereof; that there should be declared and reserved in favor of defendants a first and specific lien on said real estate in the sum of $330; that upon execution and delivery to the plaintiffs of a deed for said real estate, the plaintiffs should pay to defendants $330, less the cost of this action; that, if the defendants should fail, neglect, or refuse to execute a conveyance of said real estate as directed for a period of 10 days, a deed should be executed by the clerk of said court as commissioner. From this decree an appeal is prosecuted by defendants.
Appellants contend that the oral contract alleged in respondents' reply, and as found to have been made by paragraph 6 of the findings, is not sustained by the evidence. It will be noticed that the written agreement calls for the transfer of the personal property, free of incumbrance. As the written contract was made upon the 1st of September, and the respondent Constantine testifies that immediately thereafter he went away and did not see the appellants again until after the bringing of this action, we fail to see how, when, or where such an oral contract could have been made subsequent to the time of the making of the written contract. We are inclined to think that whatever oral agreement or understanding there was between the parties took place at or prior to the time when the written contract was executed. It was necessary for appellants to establish this oral contract in order to recover in this action. Negotiations leading up to a written contract are ordinarily presumed to culminate in said written document. It is, however, probably unnecessary for us to pass upon the question of this oral contract. Assuming it to have been
made as contended for in the reply and as stated in the findings, we are unable to see how this would justify a conclusion that respondents are entitled to the relief granted them in the decree appealed from. Instead of directing the specific performance of the contract made by the parties, this de cree directs the carrying out of an arrangement which the parties themselves did not make, but which was made for them by the court. The latter was evidently acting upon the theory that this was the nearest approach possible to the contract which the parties had made. Evidently the decree was based upon the theory that the foreclosure of the chattel mortgage upon the stock and farming utensils was chargeable to appellants, in not conveying the city lots upon which respondents were to execute a mortgage to their landlord for the unpaid rent in lieu of the mortgage which they had outstanding upon said personal property as security for said rent. But we cannot see any legal justification for this theory. Mary M. Miller & Sons was not a party to the contract between these parties, and was not the agent of either party or privy in interest with them. The respondents could have pre vented the sale of the personal property under the foreclosure proceedings by paying the amount due their landlord, or perhaps by adjusting the matter otherwise. The respondents having neglected for more than six weeks to pay and secure a cancellation or a release of the Fish mortgage, and having permitted the Miller mortgage to be foreclosed upon their property, thereby becoming unable to furnish the principal part of the consideration to be paid by them for appellants' city lots, and buving failed to meet appellants at the time when they were both in Seattle for the purpose of completo ing their arrangements, we do not believe that a showing is made that will justify the decree made by the honorable superior court.
The same is therefore reversed, and the cause remanded, with instructions to dis
. , miss the action.
HADLEY, C. J., and CROW, MOUNT, and FULLERTON, JJ., concur.
(46 Wash. 607) GRAHAM 7. BELL-IRVING. (Supreme Court of Washington. July 17, 1907.) 1. CONTRACTS-ACTION FOR BREACH-DEFENSES.
Plaintiff, an architect, agreed with defendant to prepare plans and specifications for a structure to cost not to exceed, with all extras, $25,000. The lowest bid for the construction of the building under the plans and specifications prepared by plaintiff was $35,000. Held, that the plans and specifications furnished were not in accordance with the contract, and plaintiff could not recover for them in a suit on the contract where defendant offered to return them.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, 88 1249, 1253.)
erect could be erected according to the plans The payment by defendant of $300 to plain
and specifications which were to be prepared tiff as part of the contract price for certain plans and specifications furnished by plaintiff be
by plaintiff for not to exceed $20,000, with an fore he had an opportunity to determine whether outside limit of $25,000, including all extras; the plans and specifications were in accordance that defendant employed plaintiff only upon with the contract did not bind defendant to ac
the express understanding that the building cept them, when it was found they were not in accordance with the terms of the contract.
could be erected for an amount within the 3. APPEAL--HARMLESS ERROR-ERRORS FAVOR
above sums mentioned according to the plang ABLE TO PARTY COMPLAINING.
to be prepared; and that bids could be obPlaintiff, in an appeal from a judgment for tained for the erection at said figures. He defendant in an action on a contract, cannot complain of the failure of the court to grant de
further alleges that, after the delivery of fendant relief on his counterclaim for money
certain plans and specifications and before paid plaintif under the contract.
the calling for bids, be paid plaintiff $300, [Ed. Note.-For cases in point, see Cent. Dig. but that in response to the call for bids the vol. 3, Appeal and Error, $ 4052.]
lowest bid was $35,000; that, by reason of Appeal from Superior Court, King County;
the fact that the lowest bid was $10,000 in Mitchell Gilliam, Judge.
excess of the highest sum which the plaintiff Action by John Grabam against H. Bell
had assured defendant the building would Irving to recover for services as an architect.
cost, defendant was financially unable to From a judgment for defendant, plaintiff ap
erect the building, and the plans and specifi. peals. Affirmed.
cations were wholly worthless to defendant,
the return thereof being tendered in court, Jerold Landon Finch, for appellant. Piles,
that the plans and specifications have never Howe & Farrell, for respondent.
been used by the defendant except to cal!
for bids as aforesaid. The answer sets up a HADLEY, C. J. The plaintiff in this ac- counterclaim for the return of the $300 paid. tion brought the suit to recover for serv- The reply denied much of the affirmative ices as an architect. He alleges a contract matter in the answer, and, upon issues as with the defendant of the following import: before stated, the cause was tried by the That he was on July 11, 1901, employed to court without a jury, and resulted in a judg. form, draw, and write the preliminary sketch- ment that plaintiff shall take nothing by the es, plans, and specifications for a certain
action, and that his complaint shall be disbuilding which the defendant proposed to missed. The plaintiff has appealed. erect in the city of Vancouver, British Colum- The findings of the court are substantially bia; that defendant promised to pay as.com- in accord with the allegations of respondent's pensation therefor a sum equal to 242 per answer. Aside from certain correspondence cent. of the amount of the lowest or accepted between the parties, the only evidence before bid, as the case might be, of a contractor the court was the testimony of appellant and afterwards to bid for the contract to erect
respondent. Respondent's testimony fully said building according to the plans and supported his answer, and therefore negatived specifications so prepared; that, acting under the contract alleged in the complaint. The said contract of employment, the plaintiff pre- burden was upon appellant to establish the pared such sketches, plans, and specifications, contract which he alleged. The trial court and delivered them to the defendant at Van- found the preponderance of the evidence to couyer on the 3d day of September, 1904; be with respondent, and we shall not underthat defendant accepted them and instructed take to say from anything appearing in the plaintiff to call for and receive from con- record that the court erred in that particutractors bids to erect said building according lar. With the facts established as found by to the plans and specifications; that, acting the court, it would be manifestly wrong for in accordance with such instructions, the appellant to recover. The court found that plaintiff called for bids and received from
appellant was obligated by the contract be the contractor a bid for $32.800, which was tween the parties to prepare plans and speci. the lowest bid; that on the 7th day of Sep- fications for a structure to cost not to extember, 1904, defendant paid to plaintiff $300 ceed $20,000, and with all extras not to ex. to apply upon the contract a foresaid: that ceed $25,000; that the lowest bid under the the total amount of compensation under the plans prepared was $35,000, which was $10,contract is $820, no part of which has been 000 in excess of the highest sum appellant had paid except said $300. Judgment is demand
assured respondent the building would cost. ed for $520. The defendant answered with Under such facts there was a plain failure to certain denials and admissions, and alleged prepare plans that would come within the affirmatively that he employed plaintiff to limitations of the construction cost fixed by prepare plans and specifications for a build.
respondent, a straight breach of the coning to cost $20,000, and with all extras to
tract. Appellant is therefore not entitled to cost not to exceed $25 000; that the plaintit recover upon the contract, and he is no more accepted the employment, and assured defend- entitled to recover upon a quantum meruit. ant that he (plaintiff) could accurately es- Respondent has neither accepted nor received timate the cost of work in Vancouver, and any benefits from appellant's work, and he that the building which defendant desired to offered to fully return the plans. It is argued
that the respondent's payment of $300 on Action by Marie Hab to enjoin the city of account of the plans amounted to an accept- Georgetown from taking property for street ance. The payment was made before it had
purposes. From a decree granting an inbeen demonstrated by the bids that the plans junction, defendant appeals. Affirmed. would not meet the requirements of the (011
I. II. Randolph and Wilson & Thorgrimtract in the matter of cost of construction.
son, for appellant. Smith & Cole, for reIt was a payment made upon account, some
spondent. what hastily perhaps, but under the circumstances it was not an act which bound respondent to an acceptance of the plans.
MOUXT, J. This action was brought to Appellant argues that to support consist- en join the city of Georgetown from taking a ency in the judgment he should either have strip of land 15 feet wide from respondhad judgment for the contract amount he ent's property for street purposes. The trial claims, or that the court should have given court decreed 5 feet of the land in dispute to respondent judgment for the return of the the appellant as a public highway, but en$300 which he paid. The court refused this joined the appellant from taking the remainrelief to respondent under his counterclaim. ing 10 feet. The city appeals from that part Even if it be true that respondent was en
of the decree which restrains it from using titled to recover the $300, still he has not
the 10 feet of respondent's property for highappealed from the judgment and is not com- way purposes. plaining. The judgment permits appellant to
The material facts, as agreed to by the parkeep that money, which is in his favor. It is ties, are, in substance, as follows: In the year therefore not prejudicial to him in that re
1863, a county road 60 feet wide, leading spect, and affords him no ground for com
in a southerly direction from Seattle, passplaint here. Jose v. Stetson, 20 Wash. 618, ing respondent's property, to a point on the 56 Pac. 397; Seattle Brewing, etc., Co. v.
Duwamish river, was established, laid out, Donofrio, 34 Wash. 18, 74 Pac. 823.
and opened by the board of county commist'nder the record, we think the judgment
sioners of King county. Since that time the must be affirmed.
center line of the road has been continuously
location of the center line of the road has FULLERTON, CROW,ROOT, and MOUNT,
not been changed in front of respondent's JJ., concur.
property. On February 4, 1879, a petition
was filed with the county commissioners (46 Wash. 642)
asking for a review :und relocation of this HAB v. CITY OF GEORGETOWY.
road. The petition was granted, viewers ap(Supreme Court of Washington. July 20, 1907.)
pointed, and notice given, as required by law
therefor. On May 3, 1979, the viewers' re1. IIIGIIWAYS-LOCATiOx of Road-POWER OF COMMISSIONERS-WIDTH OF Road.
port was filed. Two days later a petition ('ode 1881, $ 2975), provides that all coun- was fileil by certain of the petitioners for the ty roads shall be 60 feet wide, unless the county relocation of the road, requesting the county commissioners shall upon the prayer of the peti
commissioners to fix the width of the relotioners for the road determine upon a less muniber of feet in width. II cld that, where the coun
cated road at 30 feet along certain portions ty board acquires jurisdiction to locate a road thereof. The commissioners on that day, May upon the filing of a petition, they may fix its
J, 1879, entered an order relocating the road width at 60 feet, or at any number of feet less than 60 upon the prayer of any of the petition
as petitioned for, but fixed the width thereof ers at the hearing, but they are not bound by at 10 feet, and directed the road to be laid the petitioner's prayer, and may fix the road out and opened, which was done by the counat any width that the circumstances seem to
ty surveyor, and the road as so laid out and warrant. [Ed. Xote.-For cases in point, see Cent. Dig.
opened was approved by the county commisvol. 23, Ilighways, $$ 147-150.]
sioners on May 16, 1879. Thereafter the 2. SANE-SUFFICIENCY OF NOTICE.
property owners about the point in question I'nder ('ode 1881. & 22871. the notice of the fenced up their property by placing their relocation of a road need not state the width of
fences on the lines of their lots is platted the proposed road, but only the place of begin
which left only 30 feet of the road open ning, the intermediate points, if any, and the place of termination.
to the public, and this 30 feet of road has [Ed. Note.-For cases in point, see Cent. Dig.
been used by the public since that time. The vol. 25, Highways, $ 241.]
fences have encroached upon the road for a 3. EMINENT DOMAIX - OOMPEXSATION
distance of 5 feet for about 13 years. ReABUTTING OWNER—W'AIVER OF Rigit.
spondent, during that time, had occupied this The fact that a person petitioned the city council to open a road 60 feet in width in front
portion of the street with certain sheds. On of her property did not of itself grant the city
February 5, 19906, a petition was filed praythe right to take any of her property without ing the city council of Georgetown, which compensation.
was incorporated long after the road was [Ed. Note. For cases in point, sre Cent. Dig.
established as aforesaid by the county of vol. 18, Eminent Domain, ss 20.7.211.)
King. to open the highway to the width of appeal from Superior Court, King County; | 60 feet. The respondent signed said petition. F. B. Albertson, Judge.
| Thereafter the city removed the fences and