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of such term, must have had in mind the plan could have been obtained, did not constitute with which they were familiar; that is, the

prejudicial error as to defendant. auction plan." In a similar case the Su

Rudkin and Crow, JJ., dissenting in part. preme Court of Illinois said: “It has been

Appeal from Superior Court, Skagit Counwell said by the Supreme Court of Maryland ty; George A. Joiner, Judge. that every device and shift which the wit of

Action by Frank B. Curtin against the man could suggest have been invoked to

Clear Lake Lumber Company. Judgment for exempt contracts for illegal interest from the plaintiff, and defendant appeals. Atfirmed. operation of the law, but courts should look under the mask to discover the true nature of

Kerr & McCord, for appellant. Smith &

Cole and Robert H. Lindsay, for respondent. the transaction.'" Rhodes v. Jissouri Sarings & Loan Co., 173 Ill. 621, 50 X. E. 998, 42 L. R. A. 93. We think a different rule

HADLEY, C. J. This is an action to reshould obtain in this class of cases. Our cover damages for personal injuries. The Legislature no doubt had in mind the schemes

plaintiff was at the time of the accident in and devices that might be resorted to by as

the employ of the defendant, and the latter, sociations from other states and from foreign

in the prosecution of its business, was then countries to evade our laws, and doubtless in

clearing a right of way, and had its employés tended that the general and comprehensive

engaged at the place of the accident in cutdefinition given should apply to and exclude

ting trees. The plaintiff was severely injured all such associations from our borders. It

through being struck by a flying limb from is the duty of the court to look at the sub

a falling tree. He charges that the defendant stance rather than the mere form, and we are

was negligent in not giving him warning of convinced that public policy and our statute

the falling of the tree, so that he might have fairly construed demand that the appellant

sought a place of safety, and thus have proshould comply with our laws or cease opera

tected himself. Negligence was denied by

the defendant, and it alleged contributory tions here. There is no error in the record, and the

negligence on the part of the plaintiff. The judgment is affirmed.

answer also alleged that the dangers were open and apparent, and that plaintiff assumed

the risk of the danger'. It was further averHADLEY, C. J., and FULLERTON, CROW, DUNBAR, and ROOT, JJ., concur.

red that the injuries were due to the negli gence of a fellow servant. The cause was tried before a jury, and a verdict was re

turned in the plaintiff's favor for the sum (47 Wash. 260) CURTIN V. CLEAR LAKE LUMBER CO. of $1,500. Judgment was entered upon the

verdict, a new trial having been denied, and (Supreme Court of Washington. Oct. 8, 1907.)

the defendant has appealed. 1. TRIAL-WAIVER OF ERROR-RULING AS TO

It is first assigned that the court erred in SUFFICIENCY OF EVIDENCE-NoxSUIT.

denying appellant's motion for nonsuit; but, Error, if any, in denying a nonsuit is waived where defendant thereafter introduces as we have repeatedly held, any error in the evidence in his own behalf.

denial of this motion was waived by appel[Ed. Note.-For cases in point, see Cent. Dig. lant when it proceeded to introduce testimony vol. 46, Trial, $ 982.]

upon its own behalf, and thereby elected 2. SAME-QUESTIONS FOR JURY-CREDIBILITY

not to stand upon its said motion. ThereOP WITNESSES. The weight to be attached to the testimony

after the sufficiency of all the evidence to of witnesses is for the jury.

sustain a verdict for respondent must be con[Ed. Note.-For cases in point, see Cent. Dig. | sidered, and not that offered by the respondvol. 46, Trial, $ 334.)

ent alone. 3. MASTER AND SERVANT-INJURIES TO SERV The next assigned error, however, raises the ANT-ACTS CoXSTITUTIXG NEGLIGENCE.

sufficiency of all the evidence; it bein: conWhere the superintendent in charge of cut

tended that the court should have granted a ting trees having directed plaintiff and another employé to cut certain trees, himself cut a tree new trial för lack of evidence sufficient to a short distance from them, and failed to warn sustain the verdict. The evidence showed them of its fall, and plaintiff was struck by a

that appellant's representative, who was esflying linb broken by the falling tree from another, such failure to give warning was nrgli-pecially delegated by it to superintend its gence proximately resulting in plaintiff's injury, work at that time and place, directed the reand rendered the employer liable.

spondent and another to proceed to cut down 4. APPEAL-REVIEU-HARMLESS ERROR - ER

certain of the larger trees with a saw. While ROXEOU'S INSTRUCTION.

Where, in an action for personal injuries, they were thus engaged, this foreman went to it did not appear that absent witnesses were a place a short distance from them, and began! under the control of one party more than the cutting a smaller tree with an ax. While other, or that their whereabouts were any bet

respondent and his companion were still sawter known to one than to the other, and, fc: aught that appeared, it was as much in the pow

ing upon their tree, the foreman's tree fell, er of plaintiff as of defendant to produce them, and, in its descent, it struck another tree, an instruction that the jury were not to draw

thereby causing a limb to be thrown, which any inferences from the absence of witnesses, unless they should find that their whereabouts

injured the respondent. The evidence is all were known to the parties, and their presence | in practical

in practical accord as to the foregoing, and

it is therefore evident that, if the foreman control of one party more than the other. was negligent in such a manner as to pror or that their whereabouts were any better imately cause the injury, his neglect became known to one than to the other. For aught that of his principal, the appellant. It was that appeared, it was as much within the also practically conceded by all the witnesses | power of respondent as of appellant to prothat it is a general custom among woodsmen duce the witnesses or their testimony. to shout "Falling tree!" or other equivalent think, under any view of the law in this words, when a tree is to fall, as a warning matter, that the instruction did not beto others in the vicinity to look out for their come prejudicial in its effect, as there was no safety, and that woodsmen in general expect evidence upon which the jury could predicate to be protected by such warning. The re- a finding that one party was more neglectful spondent testified that no warning whaterer in this regard than the other, and the jury was given, and that he had no notice of the could not, therefore, draw inferences more falling of the tree until it struck the other strongly against one than the other. No autree, when it was too late for him to reach thorities are cited by either party upon this a place of safety. Two witnesses, one the point; but we are satisfied that, if there superintendent of appellant and the other an was any technical error in the 'instruction employé, testified that respondent stated in wben considered as a whole, it was harmtheir presence just after the surgeon had less for the reasons above stated. dressed his wounds that the foreman did The judgment is affirmed. shout a warning. The respondent flatly denied that he made any such statement. There

MOUNT and FULLERTON, JJ., concur. was thus a sharp confiict in the testimony up ROOT and DUNBAR, JJ. We think the on this material point, and neither the trial instruction complained of erroneous, but court nor this court should undertake to say

not prejudicial under the evidence and facts under the evidence in the record what tes

of this case. We concur in the result. timony the jury should have credited. The weight to be attached to the testimony of the RUDKIN, J. I dissent. As stated in the several witnesses was for the jury to de majority opinion, "nothing in the evidence termine. Under the instructions of the court, showed that the absent witnesses were under the jury by the verdict must have found that the control of one party more than the other, respondent's testimony was true, and that no or that their whereabouts were any better warning was given. Such being an establish known to one than to the other," and in such ed fact in the case, it follows that appellant's case there is no inference or presumption one negligence is also established, and that the way or the other. In Scovill v. Baldwin, 27 verdict is thereby sustained.

Conn. 316, the court said: “The circumstance A number of errors are assigned upon the that a particular person, who is equally withcourt's refusal to give instructions in the in the control of both parties, is not called form requested by appellant. We believe the as a witness, is too often made the subject instructions which the court gave covered of comment before the jury. Such a fact fully and fairly every proper legal phase of lays no ground for any presumption against the case, and that no prejudicial error was either party. If the witness could aid either committed in the refusal to instruct in the party, such party would probably produce language requested. It is urged that the him. As he was not produced, the jury have court erred in giving the following instruc no right to presume anything in respect to tion: "I instruct you, gentlemen of the jury, his knowledge of any facts in the case, bethat you are not to draw any inferences from cause they are to try the case upon the facts the absence of witnesses in this case, unless shown in evidence, and upon them alone, you should further find that the whereabouts without attempting to guess at what might be of such witnesses were known to the parties shown if particular persons were producer in the case, and that their presence could by the parties.” To the same effect, see have been obtained or their evidence could Haynes 1. McRae, 101 Ala. 318. 13 South. hare been obtained.” The appellant request. 270; Crawford v. State, 112 11a. 1, 21 South. ed an instruction that no inferences could be 214; Nelms v. Steiner, 113 Ala. 302. 22 South. drawn against appellant itself by reason of 435; Farmers' Bank v. Worthington, 14.5 No. the absence of witnesses, but the instruction 91, 46 S. W. 745; Diel v. Mo, Pac. R. ('o., 37 was incdified by the court so as to apply to Mo. App. 45.5; Wood v. gostines, 7:2 V't. 51. either party, and, in addition thereto, such 47 Atl. 108; Daggett v. Champlain Mfg. Co., words were used as may have left the jury to 72 Vt. 332, 47 Atl. 1081; 22 Amer. & Eng. imply that, if they found as a fact that the Ency. of Law (20 Ed.) 1202. It surely cannot whereabouts of witnesses were known to the be said as a matter of law that a litigant parties and that their presence or evidence must produce every witness who may know could have been obtained, then they might | anything about his cause. or incur the risk draw inferences from the absence of such of having the court charge the jury that witnesses. The statement of the court was they may indulge in presumption against him made to apply as fully to one party as to for his failure in that revaril. If the instructhe other. Nothing in the eridence showed tion complained of is erroneous, it is for that the absent witnesses were under the a reversal, unless this court can say beyond

peradventure that no prejudice resulted there Action by Isabelle R. Steele and another from; and the mere fact that the instruction against Jay Lawyer and another, partners was made applicable to both parties is not as the Western Trust & Investment Compadecisive on that question. The court below ny, and others. From a judgment for cerevidently concluded that one or other of the tain defendants, plaintiffs appeal. Affirmed. parties failed to produce witnesses, else the instruction would not have been given; and,

Danson & Williams and Fred H. Moore, if the court so concluded, why not the jury?

for appellants. Graves, Kizer & Graves, Can it be said to a moral certainty that the

for respondents. jury did not conclude that the obligation to i produce these witnesses rested upon the ap

RUDKIN, J. Some years ago the plainpellant, in whose employ they were at the

tiffs, who are residents of the state of Marytime of the accident complained of? I am

land, acquired by mortgage foreclosure a far from satisfied that such was not the case,

large tract of wild unplatted land in the and I therefore dissent.

northern part of the city of Spokane. The

land thus acquired was rough and gravelly, CROW, J., concurs in the foregoing dissent.

covered with a growth of scrub pine, and fit only for townsite purposes. In the month of

February, 1905, this land was sold to the (47 Wash. 266)

defendant Lawyer Land Company. At the STEELE et al. V. LAWYER et al. (.

the land were ungraded, and the land itselt 1. BROKERS - COMMISSIONS INTEREST

OF

was without water, light, or street car servBROKER IN PURCHASE-EFFECT. One procuring a corporation in which he

ice. Immediately after the sale the land was is a stockholder to purchase real estate of anoth. | platted into lots and blocks, the streets grader is not entitled to commission from the latter ed, a water supply secured, and light and because of his interest in the purchase.

street car facilities obtained at a considera[Ed. Note.-For cases in point, see Cent. Dig. vol. 8, Brokers, § 49.]

ble cost to the purchaser. The lots were ex

tensively advertised, and at the time of the 2. SAME-EMPLOYMENT. A company sought employment as agent for

commencement of this action, some 18 months a commission to procure a purchaser. It was after the sale, the greater part of the propnot recognized as such, and was informed that | erty had been sold, and the purchaser was a part of the premises had been sold, and that

in a fair way to make a good profit on an option contract had been given for the balance. Subsequently it wrote the owner that it

its investment. The present action was had a party in view whom it might interest in brought to rescind the sale above referred to, the property, "provided we could get an option." to recover the property unsold, and for an The owner refused to give an option, fixed the

accounting of all sums received on account of price per acre and the terms, and added: “If

sales made. This relief was sought upon you can do anything for me on these terms, I shall be glad to hear from you." The company the sole ground that the defendants Lawyer wrote: “Our people will pay $25,000 net. and Dalke, partners as the Western Trust & The owner agreed to sell, and the company in transmitting the opinion of its attorney on the

Investment Company, were the agents of the abstract referred to unpaid taxes, the cost of plaintiffs in negotiating the sale to the de the abstract, and a claim on account of the de- fendant Lawyer Land Company, and were ficiency in acreage, without making any reference

also interested in the purchase as stockholdto a commission. Held, that the company was not the owner's agent to procure a purchaser,

ers in the purchasing company, which latter though it accepted a commission to which it | fact was unknown to the plaintiffs at the was not entitled.

time of the sale, or until a few days prior to 3. PRINCIPAL AND AGENT-NATURE OF RELA the commencement of the action. The court TION. Agency is a relation founded on contract,

below denied the relief prayed for, and the express or implied, or created by law, by virtue plaintiffs have appealed. of which one is authorized to represent and act If the relation of principal and agent did for another in business dealings with third per not exist between the appellants and the re sons.

spondents Western Trust & Investment Com[Ed. Note. For cases in point, see Cent. Dig. vol. 40, Principal and Agent, $ 1.]

pany at or prior to the time of the sale which

the appellants are now attempting to rescind, 4. CANCELLATION OF INSTRUMENTS-GROUNDS -SUFFICIENCY.

the judgment must of necessity be affirmed; An owner conveyed to a purchaser, a cor and we will first address ourselves to a conporation, procured by a third person. The own sideration of that question. If such relationer, though not knowing that the third person was interested in the purchase as a stockholder,

ship existed, it was created by or resulted had his suspicions aroused, but he made no in from the written correspondence between the quiry. The owner and the third person dealt parties, as they never met or bad other or with each other at arms' length, and the lat

further dealings. The negotiations leading ter represented the purchaser, if anybody. Held, that the owner was not entitled to a cancella

up to the sale were conducted by the appeltion of the conveyance on the ground that the

lant Margaret A. Steele on the part of the third person was his agent in procuring a pur appellants, and largely by the respondent chaser, and was interested in the purchase.

Lawyer on the part of the Western Trust & Appeal from Superior Court, Spokane Investment Company ; but, for convenience, County; Henry L. Kennan, Judge.

we will hereafter refer to the parties to the

to

correspondence as the appellants and the ket. The price is $215 per acre.

I Western Trust & Investment Company. am not in a position to give an option to any

The first communication between the par one now, and do not expect to give one at all ties was the following letter from the Western unless it be for a very short time to close Trust & Investment Company under date of a deal that has been previously arranged. If September 30, 1903: "We note that you are you can do anything for me on these terms, paying taxes on N. E. 14 of S. E. 14 of Sec. I shall be glad to hear from you. 6 T 25 R 13.

We have a party that The price I now quoted ($215 per acrel is desires to purchase 5 or 10 acres in that for all cash or half cash, and the rest first vicinity, and hence we write you to ascer mortgage on the land." On December 5th the tain your best cash price.

P. S. Western Trust & Investment Company again Make price including a 5 per cent. com." The wrote: "In reply to yours of the third answer of appellants, under date of October [should be thirtieth] ult., will say that we Oth, was as follows: "In reply to your let have parties who will buy your 110 acres in ter of inquiry of the 30th ultimo, I will say Sec. 6. provided you will make some small that it is not our desire to sell off the best concessions from terms as stated in your letpart of our land * in such small par

ter. You offered us the entire 150 acres in cels, but we are offering the whole of the Jay last at $200 per acre since then you have east forty in one lot. Messrs. H. Bolster & sold the best 10 acres, and now ask $213 for Co. of your city have the matter in charge at the remainder. This is more of an advance present, and will be glad to answer inqui

than conditions will warrant, but to cut it ries,” Under date of May 12, 1901, the appel

short our people will pay you $25,000 net for lants wrote: "Last October I received a the property, but will require a little time to letter of inquiry from your firm in regard to

get the money together. *

* * We can some land my sister and I own north of Spok assure you that this is a very liberal offer ane. At that time a client of yours wished to for the property, and feel sure that you can

not do better. * buy 5 or 10 acres. * * * I write to say that

* *? To which the apthe land is now for sale, but not in quite such pellants replied under date of December 12th: small portions as you asked for last year.

The figures I have given you are * * * If at present you have a client

the best we can do on the land. In regard wanting such land, I shall be glad to hear

to the sixty days for payment, we could not from you.” This letter was answered under

give so much unless a considerable sum was date of September 26th as follows: "On May

paid down as an evidence of good faith. 12th, you wrote us regarding the X. 1, of the

Otherwise your proposition would amount to S. 12 of Sec. 6. * * * We have been do

option of sixty days, which we are not preing some work on this proposition, and now

pared to give. I shall be glad to hear furhave a party interested in the proposition,

ther from you if your clients can agree to our and think we can make a sale. Before going

terms." On December 28th the Western more fully into the matter with our client,

Trust & Investment Company wired: “Will we would like to have a letter from you gir

you give us to Jany twentieth to close land ing us the exclusive sale for, say sixty days,

deal at your price. Wire answer." On Deand stating that a commission of 5 per cent.

cember 30th the appellants answered by wire: will be allowed us for making the sale. If you

I will give until Jany twentieth to close will give this matter your prompt attention.

deal.”

The following day the appellants we have every reason to believe that we can

wrote: "If you have prospect of completing make the deal for you in a very short time."

your deal by the time set, January 20th, the On October 1st the appellant replied as

deed should be placed in escrow without defollows: "Your letter of the 20th ultimo is

lay. If you will send me a blank form for at hand, and, in reply, say that I have al

deed immediately on receipt of this and will ready sold the east 40 acres of the tract to tell in whose name to draw it, *

* * I which you refer,

* * and hare given presume that you intend to pay the whole in an option on the remainder. If the present

cash." This letter was answered by the Westoption should fail of results, and if another ern Trust & Investment Company under party who seems anxious to buy in case the date of January 1, 1907, as follows: "In reremainder of the land is again on the mar

ply to yours of Dec. 31st., will say that we ket should fail to purchase, I will let you

will have the money in the bank to close deal know."

On November 234 the Western on or before the 20th, but cannot yet advise Trust & Investment Company again wrote: you how to make the deed for the reason that "You wrote us on Oct. 1st that you would our clients have not yet decide whether soon know whether or not you would be in a

they will hold title to the property as a corposition to place vacant property north of the poration or have it deedel to some one percity in Sec. 6-25–43. We have a party whom son.

*

There is no doubt about our we think we could interest providing we people taking the property.

On could get an option.” The above was an January the 13th the appellants wrote: : swered by the appellants under date of Yo “Yours of the oth inst. at band. I have vember 30th, as follows: "In reply to your just written Messrs. Crow & Williams, girletter of the 23d inst., I will say that 110 acres ing them directions about drawing of the of our land in section 6 remain on the mar mortgage in case you make half payment in

*"

that way.

Your clients will soon for our signatures. You doubtless remember have to make up their minds on the points that, when I offered you the land at $25 per you mentioned if they want the deed in bank acre, the year was still 1904, and so the taxes by the 20th instant.” On January the 20th were not due. They will not become delinthe Western Trust & Investment Company quent, as you are aware, until the 31st of applied for an extension of time in the fol May next. * * * In offering the land to lowing letter: "We regret very much to have you, I figured 110 acres at $245, or $26,930 as to inform you that we have not been able to you have stated in the deed, allowing you 5 close deal on your land. We have put in a per cent. commission, and no deductions exlot of hard work on this proposition, and cept the amount of the abstract. If you are have $13,000 on hand to put into the deal, willing to give this amount, the deed will be but other parties interested have been slow forwarded to the Traders' National Bank. If in reaching a decision and in getting their you do not wish to pay so much, there is no money. However, we feel certain that, if compulsion upon you to take it. I am willing we have a little more time, we can close the to risk holding it for a higher price. * * *" deal for cash. Our Mr. Lawyer has just had The instructions to the appellants' bankers a full discussion of the matter with Messrs. relating to the delivery of the deed were as Crow & Williams, and they are writing to follows: "* * * The inclosed deed is to be you to-day. We trust that you will under delivered to Mr. Jay Lawyer of the Western stand our position, and give us an extension Trust & Investment Co., Jamison Blk., Spokof two or three weeks. * * * Upon re ane, on the following conditions: IIe is to ceipt of this letter, please wire at our ex pay $20,9:30 (as mentioned in deed) less 5 pense the best you are willing to do for us, per cent. commission and less also $18 for and, unless there is some good reason for abstract. That is he is to pay a net sum of your not doing so, we trust you will grant

$25.584.50. Besides, he is to show you tax us the full three weeks. We will, in turn, receipts for 1901 taxes. * * Mr. Lawyer guarantee to do our best to close the sale in understood that this is the condition, we havthat time, and hope to do it before." This | ing refused to reduce our purchase price by was accompanied by a letter from the appel- | these amounts. * * *” Other brief comlants' attorneys recommending the extension,

munications between the parties have no if it did not interfere with other plans. On bearing on the question under consideration. January 26th the appellants granted the ex Did the foregoing correspondence create tension by the following telegram: “Extend

an agency between the appellants and the option three weeks from January twentieth.

Western Trust & Investment Company? It Afterward higher price." On February 6th may be that the application to extend the a deed was forwarded to the appellants for

time for consummating the sale was made in execution by their attorneys, with the name

bad faith, to permit the lien for 1.904 taxes of the grantee in blank; the attorneys in

to attach. The Western Trust & Investment forming them in the letter of transmittal that Company may have accepted and retained a the grantee was a corporation to be formed

commission they were not entitled to either for the purpose of handling the property. A

as a matter of contract or as a matter of postscript was later added to the letter, say

law, and the subsequent attempt to recover ing that the name of the grantee corporation

back a part of the purchase price on account was Lawyer Land Company, and that the

of a deficiency on the acreage may have been name had been inserted in the deed. On Feb unwarranted; but the question here is one ruary 7th the Western Trust & Investment of agency, not of honesty or fair dealing. Company wired: “Have closed deal.

Wil

In the first letters that passed between the liams sending deed to you to-day." And the

warties the Western Trust & Investment next day wrote as follows: "We are pleased

Company undoubtedly sought employment as to inform you that we have at last concluded

agents for the appellants, and expressly rearrangements for the purchase of your prop

ferred to their commission of 5 per cent., erty, and deed was forwarded to you yester

but they never were appointed or recognized day by Mr. Williams of Crow & Williams. as agents, and on October 1, 1904, were inWe hand you herewith the opinion of our formed that 40 acres of the land had already attorney on the title, which shows the taxes been sold, and that an option had been given for 1901 unpaid; also some old city taxes, for the remainder. The negotiations which both of which you can arrange to bave paid

culminated in the sale to the Lawyer Land out of the purchase price. Also in your in Company commenced with the letter of Nostructions to the bank please mention that the vember 23, 19904, wherein the Western Trust cost of the abstract, $18.00, is to be allowed. & Investment Company wrote that they had * * *" The remainder of the letter relates

ites a party in view whom they thought they to a deficiency in the acreage, and is not ma coulil interest in the property, "providing we terial. This letter and telegram the appel could get an option." Whether the option lants answered under date of February 14th, was to run to the Western Trust & Investas follows: "Your letter of the Sth inst. in ment Company or to the intending purchaser closing the opinion of your attorneys reached is a matter open to conjecture. The appelme this morning. Last night I received a lants replied to this, fixing their price at Jetter from Mr. Williams inclosing the deed $245 per acre, refusing the option, and add

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