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is brought was thereby caused. The appellant, city of Spokane, demurred to the complaint and asked for a dismissal of the cause upon the opening statement by the counsel for plaintiffs, and also upon the conclusion of the plaintiffs' testimony. These respective motions were denied. The case went to trial, and resulted in a verdict in favor of the plaintiffs.

The action is based upon the negligence of the city in not keeping the road in repair. The answer denied negligence and set up contributory negligence on the part of the respondents. It is contended by the appellant that there is a different rule of responsibility resting upon municipal corporations in maintaining regular streets than there is in what may be termed "country roads," or roads that have been made by common travel and accepted and used by the municipality; while the contention of the respondents is that the city, having adopted this road and held it out to travelers as a safe place to travel, will be held to the same rule of responsibility that it will in maintaining its streets in a reasonably safe condition for travel. Many cases from this court are cited by the respondents to sustain this judgment and the position just outlined. But, after examining them, we are forced to the conclusion that they are not in point. While it is true that we have decided that the right of the party injured to obtain redress does not depend upon the technical duty of the city to maintain a street or the technical manner in which it is adopted, we have not decided that the city was bound by the same rule of responsibility in maintaining a street as it would be in maintaining a country road. In fact, it was said by this court, in Gallagher v. Town of Buckley, 31 Wash. 380, 72 Pac. 79, that a distinction was drawn between county roads and streets, citing Elliott on Roads and Streets (2d Ed.) § 621, to the effect that the general rule appears to be that the duty to keep in repair extends only to the traveled path or portion of the way in actual use, provided it is wide enough to be safe. The author cited makes a distinction between streets and country roads, and approves the doctrine as applied to country roads, but rather disparages it as applied to improved streets of a city. This doctrine was announced in Monongahela City v. Fisher (Pa.) 2 Atl. 87, 56 Am. Rep. 241, where it was decided that a city charter requiring its corporate officers to keep its streets and roads in good condition does not impose upon the municipality the burden of keeping the entire width of its county roads in as safe condition as its streets in the built-up portion of the city; citing many cases to sustain the text. This rule is founded on reason. Travelers do not expect the same degree of safety or perfection in roads when traveling through the country as they do when traveling on the streets of a populous city, and therefore naturally exercise more caution in observing the character of the road. The general rule The general rule

seems to be that in the case of a country road all that is necessary is to keep the traveled portion of the road in repair, and that a city will not be responsible to the traveler who deviates or leaves the traveled portion of the road. Mr. Thompson, in his Commentaries on the Law of Negligence (section 6008), after commenting upon this subject at large, says: "For example, a town need not keep all parts of a country highway, leading out of a village, though within its limits, in a safe condition for public travel. So, in respect of a country road within the territorial limits of a city, if a portion of the width of the road is kept in a smooth condition and safe and convenient for travel, the city discharges its duty." Again (section 6009): "We may conclude from the foregoing that a city is not ordinarily bound to make repairs, nor to erect barriers, outside the traveled path, but that its duty in this respect is generally accomplished by making and keeping a sufficient breadth of the located road in a condition reasonably smooth and safe for travel. It may deposit on that portion of the highway outside the traveled path stumps and stones removed from the traveled path, without being liable for damages if a traveler comes in collision with them." In 2 Thompson on Negligence, p. 769, the law is summed up as follows: "But a better expression of the doctrine is: If a traveler, without necessity, or for his own pleasure or convenience, deviates from the traveled track, it being in good condition, and in so doing meets with an accident for some cause outside of such track, the town will not be liable for the resulting damages."

And that is exactly the condition of things in the case at bar. The respondent William Nelson attempted to leave one of these tracks and take another track which he saw below him, and in doing so was overturned by reason of the fact that the land between the two tracks was dangerous to travel over. There is no testimony tending to show that the road he was traveling on was not a safe road if he had pursued it, nor is there any testimony in this case that this 9-foot strip of land had ever been used by the traveling public or accepted or recognized in any way as a part of the highway. It must be borne in mind that this was not a street, but a highway; that it was not a highway made by the city, but was just such a highway as the traveling community had made by traveling over these respective tracks. Again, we think, as shown by the testimony of the respondent, that he was guilty of contributory negligence in leaving the track in which he was traveling, and which was a safe track if he had remained in it, to pursue the other track. There is no conflict in the proof as to the condition of the road. It was described by Mr. Dickey, one of the respondents' witnesses and a man who seemed to be very familiar with the road, as follows: "One raises and goes over a little mound, and in muddy weather-in muddy

weather we sometimes take this upper road; but I am over that road every day, and when I come to this point where these two roads are on a level coming out from town, if I see a team ahead of me taking this lower road, I have to take this upper road; and if I get into this lower road before the other team comes along, they invariably have to take the upper road, for if we are heavy loaded it would be a difficult matter to get a team by there." So that it appears that there were the two distinct roads, and that there was no such a thing as traveling on the land between the roads, and, i" the respondent had thought it necessary or desired to change the tracks on which he was traveling, it was his duty to examine the character of the land between the two tracks, and if he did not, and for want of the exercise of such caution respondent Sarah Nelson was injured, she cannot complain of the negligence of the city.

The reason assigned by the respondent for not keeping on the track upon which he was traveling was that it was dark, and he looked to the right and could see the road plainly, but in front of him was a little dust in the road, and he undertook to turn to the right. There would seem to be no reason why he could not see the road immediately in advance of him as well as he could the road down to the right. Of course, knowing that it was dusty, the mere fact that the dust was kicked up by the horses would indicate to any person of ordinary thought or observation that he was in the road, instead of the contrary. In addition to this, one of his witnesses, Mr. Breakfield, and one of his party, testified that he was on horseback 100 feet behind the wagon, and that he saw it when the driver attempted to turn-saw the wagon slowly careen and turn over; and if the action of the wagon could be seen so clearly as described by this witness at a distance of 100 feet, it would seem that there was no reason why the driver should not be able to see the road directly in advance of him. He no doubt concluded that the road below was probably freer of dust than the road on which he was traveling, and attempted to change roads for the purpose of escaping the dust. In any event, we think, under all the circumstances of this case, that when he did so he made the attempt at his own peril.

The judgment is reversed, and the cause remanded, with instructions to dismiss the action.

MOUNT, C. J., and HADLEY, FULLERTON, and ROOT, JJ., concur. RUDKIN and CROW, JJ., not sitting.

(45 Wash. 44)

FOWLER v. OHNICK et al. (Supreme Court of Washington. Dec. 15, 1906.) FORCIBLE ENTRY AND DETAINER-ACTS CONSTITUTING.

Where plaintiff had for a number of years been in the peaceful and undisturbed possession

of a tract of land, defendants claiming title thereto were guilty of forcible entry and detainer in entering on the land and erecting a fence in the absence of plaintiff, and preventing him from removing it on his return.

[Ed. Note. For cases in point, see Cent. Dig. vol. 23, Forcible Entry and Detainer, §§ 10, 20.] Appeal from Superior Court, King County; George E. Morris, Judge.

Action by George Fowler against Katie Ohnick and another. From a judgment in favor of plaintiff, defendants appeal. firmed.

Af

Robt. F. Booth and Walter A Keene, for appellants. Graves, Palmer & Murphy, for respondent.

RUDKIN, J. This was an action of forcible entry and detainer. There is no substantial controversy over the material facts which are as follows: Mercer's addition to North Seattle was surveyed and a plat thereof filed in the office of the county auditor of King county in the month of January. 1882. A few days after the survey was made and the plat recorded, it was discovered that the addition as staked off on the ground and as shown on the official plat was about eight feet farther south than the parties intended. The stakes were thereupon moved about eight feet to the north but no corresponding change was made in the plat as recorded. As a result the lots in the addition as shown on the official plat are eight feet south of the lots as staked off on the ground. In other words, the south line of lot 5 of block 10 (being the lot in controversy here) is eight feet south of the north line of lot 6 (immediately to the south of lot 5) as staked out on the ground. In the year 1888 the plaintiff Fowler purchased lot 5 of block 10 according to the recorded plat. In 1891 he built a residence on the easterly portion of the lot and constructed a wooden bulkhead on the east end and southerly side of the lot as shown on the plat. This bulkhead consisted of 6x6 cedar posts placed in the ground about eight feet apart to which were spiked two inch planks. The bulkhead was about five feet high at the southeast corner of the lot and came to the surface on the south side of the lot about 80 feet from the corner. The lot was graded and the plaintiff maintained cesspools on the portion of the lot in controversy here for a number of years until connection was made with the sewer. After this the cesspools were filled with ashes, and brick, lumber, and material of various kinds were deposited on the disputed tract from time to time, the same being used about the same as other portions of the lot. In 1891 or 1892 the plaintiff had a conversation with J. F. Peterson who then owned lot 6 and was asked if he did not think that the bulkhead was over the line on lot 6. The plaintiff replied that he did not. Peterson remarked that he was thinking of building on the lot and would have a survey made

to ascertain where the line was. To this the plaintiff replied: "If you find that I have got any of your ground, you shall have it, but you will find I have not." In 1903 W. A. McCutcheon purchased lot 6 and as soon as he discovered that the plaintiff claimed the northerly eight feet of the lot he surrendered the property to his grantors and they refunded the purchase money to him. In September, 1904, when the defendants purchased lot 6 they were advised of the plaintiff's claim to the northerly eight feet of the lot and their grantors refused to give a warranty deed to that part of the lot. A warranty deed was given on the southerly 52 feet and a quitclaim for the northerly eight feet. The defendants built on lot 6 during the winter of 1904 and 1905 and the contractor by permission of the plaintiff stored his material on lot 5 including the tract in dispute. The defendants moved into the house in February, 1905, and this was the first time lot 6 was ever occupied. The plaintiff was a widower living alone, and was absent from home except at nights. The first act of dominion ever asserted over the disputed tract by the defendants, to the knowledge of the plaintiff, was about June 1, 1905, when they removed several yards of earth therefrom. The plaint immediately protested by letter and later had a conference with one of defendants and his attorney at which they requested the plaintiff to sue for trespass. In the latter part of June 1905, the plaintiff saw some fencing material on the ground, and. supposing that the defendants intended to inclose the disputed tract, asked what they proposed to do, and was informed that they intended to build a fence along the north line of the tract. The plaintiff informed them that he owned the land and forbade them to build the fence. Soon after this the plaintiff returned home in the evening and found posts set along the north line of the disputed tract and wire stretched upon them. The next morning he removed some of the wire and attempted to remove the posts but found that a board had been nailed across the bottom. He then got an ax and attempted to split the posts, but one of the defendants came out with an ax or hatchet and placed it on top of the post so that the plaintiff could not strike it. A scuffle ensued in which the defendant took the plaintiff's ax from him, threw the plaintiff down and held him, stating that he would let him up if he promised to let the fence alone. This action was commenced immediately thereafter. The jury returned a verdict in favor of the plaintiff without damages, upon which a judgment was entered. From this judgment the defendants have appealed.

The only errors assigned are in the giving of instructions and in the refusal to give certain instructions requested by the appellants. It must be conceded that the charge of the court as a whole has but little application to a statutory action of this kind. Much of

the charge is devoted to the question of title by adverse possession-a question wholly foreign to the issues in this case. The jury were informed that the respondent might recover if he was in possession of the premises up to five days next before the commission of the unlawful acts complained of, but the charge was entirely silent on the question as to what would constitute a forcible entry or a forcible detainer on the part of the appellants. It is earnestly urged on behalf of the respondent that no sufficient exceptions were taken either to the charge of the court or to the refusals to charge as requested, but, in view of the conclusion we have reached on the facts, this question becomes immaterial. As already stated there is no substantial conflict in the testimony. Many of the facts detailed above are established by the appellants' witnesses. We think it clearly appears that the respondent was, at the time of the entry of the appellants, and for a number of years had been, in the peaceful and undisturbed possession of the disputed tract, exercising power and dominion over it to the exclusion of all others; that the appellants were guilty of the forcible entry and forcible detainer as alleged, and that no other verdict than that returned by the jury shoud be permitted to stand.

The judgment of the court below should therefore be affirmed, and it is so ordered.

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

(45 Wash. 41)

BRITTAIN v. PIONEER STATE BANK et al. (Supreme Court of Washington. Dec. 15, 1906.) PRINCIPAL AND AGENT-AUTHORITY OF AGENT -REVOCATION.

Where plaintiff sent a draft to a bank and authorized it to offer defendant a certain sum for her farm, to pay her the amount of the draft, the balance to be paid at a subsequent date, and she refused the offer, of which fact the bank notified plaintiff and plaintiff directed the bank to return the draft, stating that the transaction might be considered as closed, but it did not appear that the bank received this notice before the subsequent acceptance of the offer by defendant, plaintiff is not entitled to recover the amount of the draft.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Principal and Agent, §§ 60, 62, 564.] Crow, J., dissenting.

Appeal from Superior Court, Adams County; W. T. Warren, Judge.

Action by A. B. Brittain against the Pioneer State Bank and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Richardson, Roche & Onstine, for appellant. O. R. Holcomb and Zent & Lovell, for respondents.

RUDKIN, J. The plaintiff, Brittain, is a resident of Alexandria in the state of Mis

souri.

The defendant Pioneer State Bank is a banking corporation having its place of business at Ritzville in this state, and the defendant Bennett is the owner of a farm near the town of Ritzville. On the 16th day of November, 1902, the plaintiff forwarded by mail to the defendant bank a draft for the sum of $1,000 and the following receipt in blank: "Received of A. B. Brittain $1,000.00 as payment on a certain piece of land situated two miles from Ritzville, and known as the 'Bennett farm,' for which I am to pay $32,000.00, for farm and all farm implements thereon, balance to be paid in cash May 1, 1903, when possession is to be given. Mrs. Mrs. Bennett to furnish abstract showing perfect title and free from 'all incumbrances, including the taxes on said land to May 1, 1903"-and authorized the bank in his behalf to offer the defendant Bennett the sum of $32,000 for her farm, to pay her the $1,000 covered by the draft, and to take from her the above receipt properly signed. The bank thereupon offered to purchase the farm on behalf of the plaintiff for the summ of $32,000, tendered Bennett the $1,000 and presented the receipt for her signature. Bennett rejected the offer and refused to accept the money tendered, or to sign the proffered receipt. On November 21, 1902, the bank notified the plaintiff by letter that his offer had been rejected and that the draft was held subject to his order. On receipt of this letter the plaintiff directed the bank to return the draft and the receipt to him, stating that the transaction might be considered as closed. On receipt of notice from the bank that Bennett had rejected his offer, the plaintiff immediately invested the money which he intended to apply on the purchase price of the farm in other business, so that it became impossible for him to carry out his offer of purchase, even though he desired so to do. After the bank had notified the plaintiff of the rejection of his offer and that the draft was held subject to his order, Bennett accepted the offer, received the $1,000 tendered and signed the receipt and delivered it to the bank. This action was brought to recover the $1,000 thus paid, the plaintiff claiming that the payment was made without authority. The court below sustained a demurrer to the amended complaint, and. the plaintiff electing to stand on his amended complaint and refusing to plead further, a judgment of dismissal was entered. From this judgment, the plaintiff has appealed.

The contention of the appellant is thus set forth in the language of his counsel: "As we understand it, there is absolutely no conflict of authorities on the proposition that, when an offer is made and rejected, the transaction is absolutely at an end, and the party to whom the offer is made cannot revive it by such acceptance. If this is true, the attempted acceptance of the plaintiff's offer by Mrs. Bennett was absolutely without legal

effect. When the offer was rejected by the defendant Bennett the defendant bank had no authority to do anything else except to return the money." This, in our opinion, is a mistaken view as to the scope of the bank's agency. Its authority was not thus restricted. The manifest object and purpose of the agency was not merely to make a technical tender of money, accompanied by a demand for the receipt, but rather to obtain a contract for the purchase of the farm, and the authority of the agent was coextensive with the object and purpose of the agency. The question was not whether the appellant was bound by his offer after the respondent Bennett had rejected it, but whether the agent had authority to renew and continue the offer after such rejection. The agent was authorized to procure a certain contract for the purchase of the farm on certain terms, and the time and manner of accomplishing this was left to its discretion. Whether the respondent Bennett accepted the money and signed the receipt on the first, second, or third request was wholly immaterial, as the signing of the receipt and the acceptance of the money was the principal object the appellant had in view, and this was the object he authorized his agent to accomplish in his behalf. The agent, therefore, had authority to renew and continue the offer until it accomplished the purpose of the agency, or until its authority was revoked, which took place in this case by the request to return the money and the receipt. It does not appear affirmatively from the complaint that the contract was consummated before the agent was directed to return the money and the receipt, but it was incumbent on the appellant to show a revocation of the authority of the agent before the consummation of the contract, and this he failed to do. complaint therefore failed to state a cause of action, and the judgment is affirmed.

The

MOUNT, C. J., and FULLERTON, HADLEY, and DUNBAR, JJ., concur.

CROW, J. I am of the opinion that the amended complaint stated a cause of action against the respondent bank, and therefore, dissent.

(45 Wash. 52)

STATE ex rel. COOK et ux. v. FAIRLEY et al. (Supreme Court of Washington. Dec. 15, 1906.) 1. MANDAMUS-PENDENCY OF OTHER PROCEED

INGS.

Where, after plaintiff brought mandamus against a city to compel the payment of balance due him on a judgment in condemnation proceedings, the payment of the balance into the court in which the judgment was rendered, accompanied by a petition to refund the money to the city, constituted no defense.

2. SAME ABATEMENT - ANOTHER ACTION PENDING.

Where, after plaintiff brought mandamus againt a city to compel the payment of a balance

due on a judgment against the city, payment of the amount was made by the city to the court in which the judgment was rendered, accompanied by petition for its repayment to the city, this was no bar to the mandamus proceeding.

8. JUDGMENT - MERGER AND BAR-DEFENSES MERGED.

Where a city brought condemnation proceedings, in which it sought to introduce evidence of a lien for taxes and assessments for a certain amount in order to reduce the judgment for damages, but the defendants objected on the ground that the proper time to claim such offset would be when the city came to pay the award, and the city acquiesced, the judgment was conclusive on the city, and such facts were no defense to mandamus by the owners of the property to compel payment of the full amount of the judgment.

Appeal from Superior Court, Spokane County; Miles Poindexter, Judge.

Mandamus by the state, on the relation of Francis H. Cook and wife, against Robert Fairley and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

J. M. Geraghty and Alex. N. Winston, for appellants. Belt & Powell, for respondents.

RUDKIN, J. On the 17th day of January, 1906, judgment was entered in the superior court of Spokane county in favor of the relators herein and against the city of Spokane for the sum of $1,250 and $41.60, costs of suit, in a proceeding instituted by the city to condemn and appropriate for public purposes certain real property belonging to the relators. $970.17 was paid on account of this judgment, and on the 8th day of February, 1906, the relators acknowledged satisfaction of the judgment, presented a certified transcript of the docket thereof to the officers of the city authorized to draw orders on the treasurer, as prescribed by section 5676, Ballinger's Ann. Codes & St. and demanded a warrant for the balance due. The warrant was refused, and this proceeding was instituted to compel the issuance of such warrant. The petition for the writ of mandamus sets forth substantially the foregoing facts. The return admits the allegations of the petition, and avers affirmatively that at the time of the rendition of the judgment in the condemnation proceeding the city of Spokane held liens against the property appropriated in the sum of $321.43, being the amount in controversy here, for general taxes due the city and for sidewalk and street grade assessments; that such taxes and assessments were offered in evidence at the trial of the condemnation proceeding; that the defendants in said action objected to the introduction of such taxes and assessments in evidence, on the ground that the proper time to claim such offset would be when the city came to pay the award; that the attorney for the city acquiesced in this view of the law and did not insist upon his offer; and that by reason of the foregoing facts the city is entitled to an offset in the above amount against such judgment and costs. It was further averred that

the city deposited the balance due on the judgment with the clerk of the superior court in the condemnation proceeding on the 14th day of February, 1906, accompanied by a petition praying that the funds so deposited be returned to the city. The deposit was made several days after the issuance of the alternative writ. The court sustained an objection to the introduction of testimony under the answer or return, and awarded the peremptory writ as prayed. From this judgment the defendants appeal.

The payment of the balance due on the judgment into court in the condemnation proceeding, after the issuance of the alternative writ, accompanied by a petition to refund the money to the city, constituted no defense to this action. The respondents were entitled to have the money paid into court unconditionally; and the conditional payment was unavailing for any purpose. There is no merit in the contention that the respondents will have the money and the warrant, as they have never accepted the money, and the city is entitled to its return at any time. The contention that the pendency of the motion to have the money refunded to the city in another department of the court constituted a bar to the present action is equally without merit, as that proceeding was not pending at the time of the commencement of the present action. Nor did the proceedings had in the condemnation proceeding as detailed above constitute a defense. Undoubtedly the evidence tendered was competent and admissible in that proceeding, as the defendants in that action were only entitled to recover the value of their land, less the amount of the valid liens and charges held by the city against it, but that question is not subject to review here. A judgment of a court of competent jurisdiction delivered on the merits is final and conclusive between the parties in a subsequent action, not only as to all matters actually litigated and determined in the former action, but also as to every ground of recovery, and a defendant in a mandamus proceeding to enforce the collection of a judgment is estopped to plead matters which might have been urged by way of defense in the tribunal in which the judgment was rendered. Smith v. Ornsby, 20 Wash. 396, 55 Pac. 570, 72 Am. St. Rep. 110; United States v. New Orleans, 98 U. S. 381, 25 L. Ed. 225. It is often competent to prove that some matter or issue in a cause was not determined, by reason of the decision turning upon some other point, or otherwise; but this cannot be done where the proof tendered will contradict or defeat the operation of the judgment. In the case at bar the jury found in the condemnation proceeding that the respondents were damaged in the sum of $1,250, and the court rendered judgment for that amount. Now, in this collateral proceeding, the appellants are attempting to contradict that judgment by showing that the damages were, in fact, $321.43 less than the amount awarded by the

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