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person at the end of each month the amount due for boarding such other's horses, was within section 126, and that the mere delivery of the same to such third person was not an assignment of the funds in the hands of the person to whom addressed, and that he would not be liable thereon until it was accepted in writing. [Ed. Note. For cases in point, see Cent. Dig. vol. 4. Assignments, § 121.]

Appeal from Superior Court, King County; Jeremiah Neterer. Judge.

Complaint in interpleader under the statutes by Frederick & Nelson against the Spokane Grain Company and E. B. McGill, trustee in bankruptcy of the estate of James Madsen, a bankrupt. On payment into court of the amount in controversy. Frederick & Nelson were released from liability, and from a judgment that E. B. McGill, trustee. was entitled to the same, the Spokane Grain Company appeals. Affirmed.

James McNeny, for appellant. Samuel Morrison, for respondent.

MOUNT. J. Prior to August 10, 1905; one James Madsen was conducting a boarding stable for horses in the city of Seattle. He had an agreement with Frederick & Nelson to feed for them about 24 head of horses, at the price of $18 per head per month. It was customary for Frederick & Nelson to pay their bill for each month about the 5th of the succeeding month. On or about August 10, 1905, the Spokane Grain Company agreed to furnish Madsen with hay and grain for an indefinite time. Thereupon Madsen executed and delivered to the Spokane Grain Company the following order: "August 10, 1905. Frederick & Nelson, City-Gentlemen: Please pay to Spokane Grain Company at the end of each month the amount due me for boarding your horses. Their receipt shall serve as a receipt from me. Pay them what will be due me for the month of August. Also pay them all moneys that will be due me each successive month until otherwise notified by Spokane Grain Company. Yours very truly. Club Stables, by James Madsen, Proprietor." Thereafter, up to August 29, 1905, the Spokane Grain Company sold and delivered to Madsen hay and grain to the value of $451.50. During the month of August, 1905, Frederick & Nelson's bill with Madsen amounted to $440.90. The existence of the above-mentioned order was not known to Frederick & Nelson, and was not presented to them for acceptance and payment until August 31, 1905. at which time payment was refused for the reason that the amount due Madsen from Frederick & Nelson had been previously garnisheed in an action on a promissory note for $315.60, wherein E. B. McGill was plaintiff and Madsen was defendant. Madsen was afterwards, on September 6, 1995, declared a bankrupt. and E. B. McGill was appointed trustee in bankruptcy. Thereafter the Spokane Grain Company notified Frederick & Nelson not to pay to McGill as trustee in bankruptcy the money garnisheed |

in their hands. Frederick & Nelson thereupon filed a complaint in interpleader under the statutes, and, upon paying into court the amount they owed Madsen, were released from liability. The case was then contested as to whether the trustee in bankruptcy or the Spokane Grain Company was entitled to the fund. The trial court held that the former was entitled to the money. From a judgment to that effect, this appeal is prosecuted by the Spokane Grain Company.

The appellant contends that the order set out above was not a draft or bill of exchange the acceptance of which is required to be in writing, but was an order drawn on a particular fund, covered the amount of the fund drawn upon, and amounted to an equitable assignment in præsenti of the fund. notwithstanding it had not been accepted by the drawee and some authorities are cited which apparently sustain this position. But our statute seems to place the question beyond controversy, for it provides: "A bill of exchange is an unconditional order in writing addressed by one person to another. signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to order or to bearer. A bill of itself does not operate as an assignment of the funds in the hands of the drawee available for the payment thereof, and the drawee is not liable on the bill unless and until he accepts the same." Laws 1899, pp. 362, 363, c. 149, §§ 126, 127. These sections are plain, and it follows therefrom that the mere delivery of the order by Madsen to the Spokane Grain Company did not operate as an assignment of the funds in the hands of Frederick & Nelson, nor would Frederick & Nelson be liable on the order until it was accepted by them in writing. Nelson v. Nelson Bennett Co., 31 Wash. 116. 17 Pac. 749: Wadhams v. Portland, etc., R. R. Co., 37 Wash. 86, 79 Pac. 597.

This being true, it follows that the appellant had no title or claim upon the fund after it was garnisheed or paid into court by Frederick & Nelson. The judgment of the lower court must therefore be affirmed.

HADLEY, C. J., and FULLERTON, CROW, RUDKIN, and DUNBAR, JJ., concur.

(47 Wash. 107)

WRIGHT v. COMPUTING SCALE CO. et al. (Supreme Court of Washington. Sept. 6, 1907.) 1. CONTRACTS SALES - CONSTRUCTION CITY ORDINANCE AS PART OF CONTRACT.

Where defendants sold a computing scale to plaintiff under a warranty, a city ordinance at the time making it unlawful for any person to use any scale to weigh articles for sale, without first having procured a certificate from the city inspector of weights and measures that the seale had been inspected and found correct, constituted a part of the contract.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, § 750.]

2. EVIDENCE--PAROL-VARYING WRITTEN CON

TRACT.

Defendant sold plaintiff a computing scale under a warranty that it would weigh correctly, and plaintiff sued to recover damages for losses sustained by the underweight of the scales on sales made by him. An ordinance of the city prohibited the use of scales until inspected by the city inspector of weights and measures and found correct. Held that, as such ordinance constituted a part of the contract of sale, it was admissible on the part of defendant to show a non-compliance with the provisions thereof, and was not objectionable as an attempt to vary or contradict the terms of the written contract. [Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 1887.]

3. SALES RESCISSION.

Where plaintiff purchased a computing scale from defendants under a written warranty that it would weigh correctly, it was plaintiff's duty, on receiving the scale, to have the same inspected by the city inspector of weights and measures as required by a city ordinance of the place where the contract was made, and, if found defective, to rescind the contract and recover his money before any loss accrued to him through the sale of articles improperly weighed. [Ed. Note. For cases in point, see Cent. Dig. vol. 43, Sales, § 1227.]

4. SALES-BREACH OF WARRANTY-DAMAGESNONCONTEMPLATED LOSSES.

Where plaintiff purchased a computing scale from defendants under a warranty that it would weigh correctly, losses sustained by plaintiff because of underweights of such scale while being used by plaintiff for four months before he discovered that it underweighed did not naturally arise from a breach of the warranty, and were not within the contemplation of the parties when making the contract, so as to cuthorize a recovery thereof.

Appeal from Superior Court, Spokane County; Mitchell Gilliam, Judge.

Action by E. F. Wright against the Computing Scale Company and another. From a judgment for plaintiff, defendants appeal. Reversed.

J. W. Graves and A. G. Gray, for appellants. Willis H. Merriam, for respondent.

MOUNT, J. The respondent brought this action in the court below to recover damages for an alleged breach of warranty of a set of scales for weighing meats. The cause was tried to the court without a jury, and findings and a judgment were entered for the plaintiff as prayed for. Defendants appeal.

Upon the trial the court found the facts substantially in accordance with the allegations of the complaint, the material findings being as follows: "(2) That on the 2d day of December, 1903, the plaintiff purchased from the defendants, through their authorized agent at the city of Spokane, Wash., one computing scale at the agreed price of $85; that at the time of said purchase the defendants, as a part of the contract of said purchase, guaranteed the plaintiff in writing that said scale would weigh correctly any article capable of being weighed upon it. which contract of guaranty is shown in plaintiff's Exhibit No. E." This exhibit is as follows: "Received from Robert Turn

bull, 103 S. Howard, $15, as cash payment on one 63-scale, balance of $70 to be paid at the rate of $7 per month, without interest, or a discount of ten per cent. of balance will be allowed if balance is paid within thirty days of date hereof. Guaranty: The Computing Scale Co., of Dayton, O., manufacturers of the Money weight Scale, together with the Moneyweight Scale Co., of Chicago, do hereby guarantee said computing scale to weigh correctly any article capable of being weighed on it, and should the scale get out of order at any time within two years from the date of shipment, with ordinary use (not dropped or broken), we will repair the same gratis, the purchaser paying the freight or express charges to and from the factory. Money Weight Scale Company, by T. Delafield, Salesman." "(3) That on the 2d day of December, 1903, the said scale was delivered to plaintiff by the defendants, and the plaintiff paid the defendants on the purchase price thereof the sum of $43. (4) That the plaintiff bought said scale for the special purpose of using it in his place of business, to wit, a meat market situated in the city of Spokane, Wash., which purpose was known to the defendants, and plaintiff began to use it immediately upon the delivery and continued to use it down to the 24th day of March, 1904, and during the time between the said 2nd day of December, 1903, and the 24th day of March, 1904, caused to be weighed upon said scale, 2,768 sales of beef, 852 sales of pork, 401 sales of mutton, 343 sales of veal, 342 sales of sausage, 75 sales of bacon, 153 sales of ham, 205 sales of poultry, 47 sales of weinnerwurst, 92 sales of liver, 45 sales of headcheese, 145 sales of fish, and 158 sales of lard, relying at all times during said period on the guaranty of the defendants that said scales would weigh correctly. (5) That said scale was, in fact, defective at the time it was delivered to plaintiff on account of being improperly constructed and remained defective and did not at any time between the dates of December 2, 1903, and the 24th day of March, 1904, weigh correctly any article that was weighed upon it, and, in fact, on account of such defect and improper construction, the said scale weighed each and every article weighed upon it one-half pound less than its true weight, resulting in a loss to the plaintiff on account of such defects on every article weighed the value of a half a pound of the article weighed. (6) That on the 24th day of March, 1904, the aforesaid scale was inspected by the inspector of weights and measures of the city of Spokane, Wash., and said inspector found that the said scale was defective and weighed every article that had been weighed upon it one-half pound less than its true weight, and he, therefore, condemned the said scale, and the plaintiff was prohibited from using said scale by said officer. (7) That the plaintiff had no knowledge that said

scale was defective or was not weighing correctly until the 24th day of March, 1904, when it was inspected, and that he immediately thereafter notified said defendants of said defects, and the defendants removed the said scale from plaintiff's place of business, but failed and refused to pay to plaintiff the $43 plaintiff had paid to them on account of the purchase price of said scale, or to pay plaintiff the amount of the losses he sustained on account of said defects in said scale." The court then found the prices at which the beef, etc., were sold, and conIcluded that plaintiff should recover $43 paid for the scales and $338 losses sustained by the underweight of the scales. In the answer the defendants pleaded as an affirmative defense a city ordinance of the city of Spokane in force at the time the contract was made, making it unlawful for any person to use any weight or scale used in weighing articles for sale without first having procured a certificate from the city inspector of weights and measures that such scales had been inspected and found correct, that the contract of warranty was made with reference to said ordinance, and that plaintiff failed and neglected to have said scale inspected. This defense was stricken by the court upon motion of the plaintiff.

It was error, without doubt, to strike this defense. The law of the place where a contract is made is as much a part of the contract as though it were expressed therein. 9 Cyc. 582, and cases cited; Holbrook v. Ives, 44 Ohio St. 516, 9 N. E. 228. There was nothing in this defense which in any way tended to vary or contradict the terms of the written contract. The warranty was: Defendants "do hereby guarantee said computing scale to weigh correctly." This certainly did not imply that the scale had been tested and adjusted by the city inspector and his certificate issued to that effect. It was the duty of the plaintiff, under the law, to have an inspection made by that officer before the plaintiff was authorized to use the scale. If he had done so, the scale would have been condemned, and he could have rescinded the sale and recovered his money back before any loss had accrued to him. This was clearly his duty and his remedy. Furthermore, the rule in construing contracts of this kind is: "Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally; i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in contemplation of both parties at the time they made the contract, as the probable result of the breach of it." 30 Am. & Eng. Enc. of Law (2d Ed.) p. 209: Puget Sound Iron, etc., Works v. Clemmons,

32 Wash. 36, 72 Pac. 465. It is unieasonable to suppose that the contract of warranty above set out contemplated that the appellant should be liable for mistakes and underweights for a period of four months and for more than five thousand sales. Such damages did not arise naturally, nor were they in contemplation of the parties when the contract was made. But, conceding that there was a breach of the warranty and that respondent was entitled to some damages, "the buyer owes an active duty to exercise ordinary care in order to render the damages arising from the breach of warranty as light as possible. He cannot recover for expenses or losses unnecessarily incurred, nor for any damages of which his own negligence was the proximate cause. If by the exercise of ordinary care the damages might have been prevented, the measure of the buyer's recovery is the reasonable cost and expense of exercising such care, whether he exercised it or not." 30 Am. & Eng. Enc. of Law (2d Ed.) 223. Ordinary care would have discovered the error in these scales before they were used at all. A mere compliance with the city ordinance would have discovered the error. In either view of the case, upon the facts found, the plaintiff was entitled to recover back only the money he had paid on the purchase price.

The judgment is therefore reversed, and the cause remanded, with instructions to enter a judgment in favor of the respondent for $43. The appellants are allowed their costs of this appeal.

HADLEY, C. J., and CKOW, FULLERTON, and DUNBAR, JJ., concur. RUDKIN, J., concurs on the second ground stated in the opinion.

(47 Wash. 88) PORTLAND & SEATTLE RY. CO. v. LADD et al.

(Supreme Court of Washington. Sept. 6, 1907.) 1. APPEAL-CONTINUANCE-DENIAL-REVIEW. The denial of an application for a continuance will not be reviewed on appeal, except for abuse of discretion.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3. Appeal and Error, § 3837.1

2. CONTINUANCE-ABSENCE OF PARTIES.

Where, in condemnation proceedings, the actual owners of an undivided two-thirds_interest in the property sought to be condemned were present, and there was no showing that defendant's counsel were dependent on L.. who, with his wife, owned the other one-third, or that they had relied on him to furnish evidence or that he was a material witness, or that other witnesses were not at hand, the court's refusal of a continuance because of L.'s absence was not an abuse of discretion.

[Ed. Note. For cases in point, see Cent. Dig. vol. 10, Continuance, § 41.]

3. EVIDENCE - DOCUMENTARY MAPS.

EVIDENCE

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Where, in a proceeding to condemn land for a railroad right of way, there was no dispute in the evidence as to the exact location of the

railroad line on the ground or of the amount of and sought to be appropriated as staked. certain maps, shown to be an accurate description of the location of the road as laid out on the land, were admissible as illustrative of the testimony of the witnesses, though not made by the person who made the surveys on the ground.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20. Evidence, §§ 1500, 1501.]

4. APPEAL-ADMISSION OF EVIDENCE-PREJU

DICE.

Where, in proceedings to condemn land for a railroad right of way, there was no dispute as to the location of the line or the amount of land sought to be taken, defendants were not prejudiced by any error in the admission of certain maps of the location which did not coincide in all particulars.

legal title of the land sought to be appro priated stood in the name of Charles E. Ladd and wife, but the equitable title was in Ladd and wife and the Columbia Contract Company, a corporation, in the proportion of one-third in Ladd and wife and two-thirds in the Columbia Contract Company. June 8, 1906, a preliminary order was made in condemnation, adjudging the land sought by the railroad company a necessary public use, and ordering a jury to assess the damages in favor of the owners. On June 21, 1906, notice was served on appellants' attorneys that a jury would be summoned for the 12th day of July, 1906, to determine the

[Ed. Note. For cases in point, see Cent. Dig. question of damages, and the jury was acvol. 3, Appeal and Error, § 4153.]

5. LIS PENDENS - CONDEMNATION

INGS.

PROCEED

Ballinger's Ann. Codes & St. § 4887. authorizing the filing of a lis pendens in actions affecting the title to real property, applies to proceedings to condemn land for a railroad right of way.

6. SAME PURCHASERS WITH NOTICE.

Ballinger's Ann. Codes & St. § 5637, provides that any corporation authorized to appropriate land may present a petition to the superior court of the county where the land is located, describing the land and setting forth the claim of every person interested in the land, as ascertained from the public records, and section 5638 requires that notice shall be served on every person named in the petition as interested in the land. Held, that no notice is required to be served on subsequent purchasers and incumbrancers, but subsequent purchasers and incumbrancers are charged with notice thereof.

7. EMINENT DOMAIN-COMPENSATION-MEASURE-USE OF PROPERTY.

Where, in a proceeding to condemn land for a railroad right of way, defendants claimed injury to a quarry, and it appeared that the rock could not be quarried without injury to lands which defendants did not own, but which belonged to the railroad company, the court properly charged that, if the rock could only be profitably quarried by injury to the land owned by the railroad company, the jury should disregard all evidence of the value of the rock as a quarry.

Rudkin, J., dissenting in part.

Appeal from Superior Court, Skamania County; W. W. McCredie, Judge.

Condemnation proceedings by the Portland & Seattle Railway Company against Charles E. Ladd and others. From a judgment assessing damages to which defendants were entitled, they appeal. Affirmed.

Teal & Minor and W. A. Johnson, for appellants. James B. Kerr and George T. Reid, for respondent.

MOUNT. J. This appeal is prosecuted from a judgment based upon an award for damages in condemnation. The errors assigned will be considered and decided in the order assigned in appellants' brief. The facts necessary to an understanding of the points made will be stated as each point is considered.

It is first argued that the court erred in denying a motion for a continuance. The

cordingly summoned for that day. On July 12, 1906, at the time fixed for the trial, a motion was filed by attorneys for Mr. Ladd, asking for a continuance of the trial upon the ground that Mr. Ladd was absent in some eastern state and was not advised of the time when the trial was to take place and counsel could not locate him. The affidavit in support of the motion showed diligence of counsel in trying to locate Mr. Ladd: but there was no showing that counsel were dependent upon Mr. Ladd, or had relied upon him, to furnish evidence or the facts in the case, or that Mr. Ladd was a material witness, or that other witnesses were not at hand to fully establish all the facts upon which the appellants relied. The granting or refusing of a continuance of a trial rests largely in the discretion of the trial court, and will only be reviewed for abuse. Maloney v. Stetson & Post Mill Co. (Wash.) 90 Pac. 1046. We are satisfied the court did not abuse its discretion in this case, because of the failure to show the facts above stated, and because the actual owners of an undivided two-thirds interest in the property were present. In fact, the pleadings show that the whole property was purchased by the Ladds and the Columbia Contract Company for use as a stone quarry, and that the same was to be operated by the appellant Columbia Contract Company, which company was present at the trial by its officers. There was therefore no error in denying the motion for a continuance.

Appellants next contend that the court erred in receiving in evidence certain maps, marked Exhibits A, B, D. and F, and in denying the motion to exclude these maps after they had been received in evidence. The points made are that the maps were not prepared by the engineers who made the surveys upon the ground, and also that the maps did not agree with themselves. There seems to have been no dispute in the evidence as to the exact location of the railroad line upon the ground, or of the amount of land sought to be appropriated, which was fifty feet on each side of the center line of the railway as staked upon the ground. The maps were not offered or received as evidence in themselves of the location of the

line, but only as illustrative of the testimony of the witnesses testifying in relation thereto, and therefore were admissible, even though they were not made by the persons who made the surveys upon the ground, where they were shown to be accurate. 17 Cyc. 412. The witnesses who testified in regard to these maps all testified that the maps were accurate, and showed the location of the line as laid out upon the land. It is true these persons neither surveyed the ground nor made the maps, but they testified that they scaled the maps and compared them with the government and other field notes, and found them to be accurate. This was sufficient to entitle the maps to go in evidence as a part of the testimony of the witnesses. It is true one of the maps offered did not coincide with the others in all particulars, but this variance was explained so as not to mislead any one. But, if all the maps were improperly in evidence, it is difficult to see any prejudicial error, because there was no dispute as to the location of the railway line or the amount of land sought to be taken. The questions for the jury were, what is the value of the land taken, and the damage to the land not taken? Neither question was affected by the maps when the line was actually staked upon the ground and had previously been adjudged necessary for a public use. It is true the appellants claim their land extended further east than was admitted by the respondent, and therefore gave them 90 or 100 feet more land to the east of the base of Castle Rock, which appellants sought to show is a rock quarry which is greatly damaged by the construction of the railway line; but the evidence of appellants on this subject showed conclusively that the stone could not be quarried from Castle Rock profitably unless the stone was thrown by a blast a distance of from 200 to 400 feet beyond the appellants' line, even if the east line were located 100 feet further east than the line claimed by respondent. The exact location of this line is therefore

immaterial, because, in any event, the quarry could not be profitably operated without destroying property which appellants did not own and could not acquire.

Appellants next contend that the court erred in giving the following instruction: "If the petitioner commenced a suit to appropriate a right of way across the Snooks donation land claim and filed its lis pendens thereof in the auditor's office in Skamania county, Wash., and subsequent thereto claimants obtained an option or agreement to purchase a part of said donation land claim, through which said proposed road extends and subsequent thereto said case came on to be heard and the damages were assessed and paid and the right of way appropriated by the petitioner, then the petitioner is the own er of said right of way and claimants' said right to purchase is subsequent and subordi

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nate thereto." The trial court was evidently of the opinion that section 4887 of the practice act (Ballinger's Ann. Codes & St.), relating to the manner of commencing actions, applies to cases of this character. It is argued by appellants that proceedings in condemnation are special proceedings, and therefore that section 4887, which relates to the filing of a lis pendens in actions affecting the title to real property, does not apply to this class of cases. We are of the opinion that the section does apply to cases of this kind. While it is true that proceedings in condemnation are special in this state and are therefore governed by all the requirements stated in the statute, yet, where no provision is made for the protection of parties to such proceedings, the rules of common practice must necessarily apply. The statutes relating to the exercise of the right of eminent domain provide, at section 5637, Ballinger's Ann. Codes & St., that any corporation authorized to appropriate land may present to the superior court of the county where the land is located a petition describing the land sought and setting forth the name of each owner, incumbrancer, or other person interested in the land. "so far as the same can be ascertained from the public records." The record owners or incumbrancers are therefore the only parties made necessary by this statute. The next section provides that a certain notice "shall be served on each and every person named therein as owner, incumbrancer, tenant, or otherwise interested" in the land. No provision is made in the act for the service of notice upon incumbrancers or purchasers of the land after the proceedings are begun. It is, no doubt, required that tenants or persons in possession are required to be served with notice; but incumbrancers or purchasers with notice after the proceedings are begun are, of course, bound by the record and take subject thereto. In Re Smith's Petition, 9 Wash. S5, 37 Pac. 311, 494, this court said: "It has been frequently said by courts that the taking of land by eminent domain is a proceeding in rem, and the service of a constructive notice has been justified by the practice which prevails in that class of cases. But it is well known that proceedings in rem presuppose that the complaining party has a superior right to the subject of the suit, or a right to have it subjected to his claim and that the first requisite is a seizure of the thing itself, after which follows notice. "The theory of the law is that all property is in the possession of its owner, in person or by agent, and that its seizure will, therefore, operate to impart notice to him.' Windsor v. McVeigh, 93 U. S. 274. 23 L. Ed. 914." It follows, of course, if these proceedings are in rem, subsequent purchasers are bound by the proceedings pending, and are bound to take notice thereof where possession is taken prima facie by staking the line upon the

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