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is brought was thereby caused. The appel- | seems to be that in the case of a country road lant, city of Spokane, demurred to the com- all that is necessary is to keep the traveled plaint and asked for a dismissal of the cause portion of the road in repair, and that a city upon the opening statement by the counsel will not be responsible to the traveler who for plaintiffs, and also upon the conclusion of deviates or leaves the traveled portion of the the plaintiffs' testimony. These respective road. Mr. Thompson, in his Commentaries motions were denied. The case went to trial, on the Law of Negligence (section 6008), aftand resulted in a verdict in favor of the er commenting upon this subject at large, plaintiffs.

says: "For example, a town need not keep The action is based upon the negligence of all parts of a country highway, leading out the city in not keeping the road in repair. of a village, though within its limits, in a The answer denied negligence and set up con- safe condition for public travel. So, in retributory negligence on the part of the re- spect of a country road within the territorial spondents. It is contended by the appellant limits of a city, if a portion of the width of that there is a different rule of responsibility the road is kept in a smooth condition and l'esting upon municipal corporations in main- safe and convenient for travel, the city distaining regular streets than there is in what charges

charges its duty." Again (section 6009): may be termed "country roads,” or roads that “We may conclude from the foregoing that have been made by common travel and ac- a city is not ordinarily bound to make repairs, repted and used by the municipality; while nor to erect barriers, outside the traveled the contention of the respondents is that the path, but that its duty in this respect is gencity, having adopted this road and held it outcrally accomplished by making and keeping to travelers as a safe place to travel, will be a sufficient breadth of the located road in a held to the same rule of responsibility that it condition reasonably smooth and safe for will in maintaining its streets in a reasonably travel. It may deposit on that portion of the safe condition for travel. Many cases from highway outside the traveled path stumps and this court are cited by the respondents to sus- stones removed from the traveled path, withtain this judgment and the position just out- out being liable for damages if a traveler lined. But, after examining them, we are comes in collision with them.” In 2 Thompforced to the conclusion that they are not son on Negligence, p. 769, the law is summed in point. While it is true that we have de- up as follows: “But a better expression of ided that the right of the party injured to the doctrine is: If a traveler, without necesobtain redress does not depend upon the tech-sity, or for his own pleasure or convenience, nical (luty of the city to maintain a street or deviates from the traveled track, it being in the technical manner in which it is adopted, good condition, and in so doing meets with an we have not decided that the city was bound accident for some cause outside of such track, by the same rule of responsibility in main- | the town will not be liable for the resulting taining a street as it would be in maintaining damages." a country road. In fact, it was said by this And that is exactly the condition of things court, in Gallagher v. Town of Buckley, 31 in the case at bar. The respondent William Wash. 380, 72 Pac. 79, that a distinction was Nelson attempted to leave one of these tracks cirawn between county roads and streets, cit- and take another track which he saw below ing Elliott on Roads and Streets (2d Ed.) § | him, and in doing so was overturned by rea021, to the effect that the general rule appears son of the fact that the land between the two to be that the duty to keep in repair extends tracks was dangerous to travel over. There only to the traveled path or portion of the is no testimony tending to show that the road way in actual use, provided it is wide enough he was traveling on was not a safe road if to be safe. The author cited makes a distinc | he had pursued it, nor is there any testimony tion between streets and country roads, and in this case that this 9-foot strip of land had approves the doctrine as applied to country ever been used by the traveling public or acroads, but rather disparages it as applied to cepted or recognized in any way as a part improved streets of a city. This doctrine was of the highway. It must be borne in mind announced in Monongahela City V. Fisher that this was not a street, but a highway ; (Pa.) 2 Atl. 87, 56 Am. Rep. 241, where it was that it was not a highway made by the city, but decided that a city charter requiring its cor- was just such a highway as the traveling comporate officers to keep its streets and roads inmunity had made by traveling over these regood condition does not impose upon the mu- spective tracks. Again, we think, as shown nicipality the burden of keeping the entire by the testimony of the respondent, that he width of its county roads in as safe condi- was guilty of contributory negligence in leartion as its streets in the built-up portion of ing the track in which he was traveling, and the city ; citing many cases to sustain the which was a safe track if he had remained in text. This rule is founded on reason. Trav- | it, to pursue the other track. There is no elers do not expect the same degree of safety conflict in the proof as to the condition of the or perfection in roads when traveling through road. It was described by Mr. Dickey, one of the country as they do when traveling on the the respondents' witnesses and a man who streets of a populous city, and therefore natu- seemed to be very familiar with the road, as rally exercise more caution in observing the follows: “One raises and goes over a little character of the road. The general rule / mound, and in muddy weather-in muddy weather we sometimes take this upper road; of a tract of land, defendants claiming title but I am over that road every day, and when thereto were guilty of forcible entry and deI come to this point where these two roads tainer in entering on the land and erecting a

fence in the absence of plaintiff, and preventing are on a level coming out from town, if I see him from removing it on his return. a team ahead of me taking this lower road, [Ed. Note.-For cases in point, see Cent. Dig. I have to take this upper road; and if I get vol. 23, Forcible Entry and Detainer, $$ 10, 20.] into this lower road before the other team

Appeal from Superior Court, King County; comes along, they invariably have to take the

George E. Morris, Judge. upper road, for if we are heavy loaded it

Action by George Fowler against Katie would be a difficult matter to get a team by

Ohnick and another. From a judgment in there.” So that it appears that there were

favor of plaintiff, defendants appeal. Afthe two distinct roads, and that there was no

firmed. such a thing as traveling on the land between the roads, and, i" the respondent had thought

Robt. F. Booth and Walter A Keene, for it necessary or desired to change the tracks

appellants. Graves, Palmer & Murphy, for on which he was traveling, it was his duty to

respondent. examine the character of the land between the two tracks, and if he did not, and for RUDKIN, J. This was an action of forwant of the exercise of such caution respond- cible entry and detainer. There is no subent Sarah Nelson was injured, she cannot stantial controversy over the material facts complain of the negligence of the city.

which are as follows: Mercer's addition to The reason assigned by the respondent for North Seattle was surveyed and a plat therenot keeping on the track upon which he was of filed in the office of the county auditor traveling was that it was dark, and he looked of King county in the month of January, to the right and could see the road plainly, 1882.

1882. A few days after the survey was made but in front of him was a little dust in the and the plat recorded, it was discovered that road, and he undertook to turn to the right. the addition as staked off on the ground and There would seem to be no reason why he

as shown on the official plat was about eight could not see the road immediately in advance feet farther south than the parties intended. of him as well as he could the road down to The stakes were thereupon moved about the right. Of course, knowing that it was eight feet to the north but no corresponding dusty, the mere fact that the dust was kicked change was made in the plat as recorded. up by the horses would indicate to any per

As a result the lots in the addition as shown son of ordinary thought or observation that on the official plat are eight feet south of he was in the road, instead of the contrary. the lots as staked off on the ground. In In addition to this, one of his witnesses, Mr. other words, the south line of lot 5 of block Breakfield, and one of his party, testified 10 (being the lot in controversy here) is eight that he was on horseback 100 feet behind the feet south of the north line of lot 6 (imwagon, and that he saw it when the driver mediately to the south of lot 5) as staked attempted to turn-saw the wagon slowly out on the ground. In the year 1888 the careen and turn over; and if the action of plaintiff Fowler purchased lot 5 of block 10 the wagon could be seen so clearly as de- according to the recorded plat. In 1891 he scribed by this witness at a distance of 100 built a residence on the easterly portion of feet, it would seem that there was no reason the lot and constructed a wooden bulkhead why the driver should not be able to see the on the east end and southerly side of the road directly in advance of him. He no doubt | lot as shown on the plat. This bulkhead concluded that the road below was probably consisted of 6x6 cedar posts placed in the freer of dust than the road on which he was ground about eight feet apart to which were traveling, and attempted to change roads for spiked two inch planks. The bulkhead was the purpose of escaping the dust. In any about five feet high at the southeast corner event, we think, under all the circumstances of the lot and came to the surface on the of this case, that when he did so he made the south side of the lot about 30 feet from the attempt at his own peril.

corner. The lot was graded and the plaintiff The judgment is reversed, and the cause maintained cesspools on the portion of the remanded, with instructions to dismiss the ac- lot in controversy here for a number of years tion.

until connection was made with the sewer.

After this the cesspools were filled with MOUNT, C. J., and HADLEY, FULLER

ashes, and brick, lumber, and material or TON, and ROOT, JJ., concur. RUDKIN and

various kinds were deposited on the disputed CROW, JJ., not sitting.

tract from time to time, the same being used about the same as other portions of the lor.

In 1891 or 1892 the plaintiff had a conversa(45 Wash. 44)

tion with J. F. Peterson who then owned FOWLER V. OHNICK et al.

lot 6 and was asked if he did not think that (Supreme Court of Washington. Dec. 15, 1906.) FORCIBLE ENTRY AND DETAINER-ACTS CON

the bulkhead was over the line on lot 6. The

plaintiff replied that he did not. Peterson STITUTING. Where plaintiff had for a number of years

remarked that he was thinking of buildbeen in the peaceful and undisturbed possession ing on the lot and would have a survey made

to ascertain where the line was. To this the charge is devoted to the question of title the plaintiff replied: "If you find that I have by adverse possession--a question wholly got any of your ground, you shall have it, foreign to the issues in this case.

. The jury but you will find I have not." In 1903 W. A, were informed that the respondent might McCutcheon purchased lot 6 and as soon as recover if he was in possession of the premhe discovered that the plaintiff claimed the ises up to five days next before the comnortherly eight feet of the lot he surren- mission of the unlawful acts complained of, dered the property to his grantors and they but the charge was entirely silent on the refunded the purchase money to him. In question as to what would constitute a forSeptember, 1904, when the defendants pur- cible entry or a forcible detainer on the part chased lot 6 they were advised of the plain- of the appellants. It is earnestly urged on tiff's claim to the northerly eight feet of the behalf of the respondent that no sufficient lot and their grantors refused to give a war- exceptions were taken either to the charge ranty deed to that part of the lot. A war- of the court or to the refusals to charge as ranty deed was given on the southerly 52 requested, but, in view of the conclusion we feet and a quitclaim for the northerly eight | have reached on the facts, this question befeet. The defendants built on lot 6 during | comes immaterial. As already stated there the winter of 1904 and 1905 and the con- is no substantial conflict in the testimony. tractor by permission of the plaintiff stored Many of the facts detailed above are estabhis material on lot 5 including the tract in lished by the appellants' witnesses. We dispute. The defendants moved into the think it clearly appears that the respondent house in February, 1905, and this was the was, at the time of the entry of the appelfirst time lot 6 was ever occupied. The plain- lants, and for a number of years had been, tiff was a widower living alone, and was ab- in the peaceful and undisturbed possession of Sent from home except at nights. The first the disputed tract, exercising power and doact of dominion ever asserted over the dis- minion over it to the exclusion of all others; puted tract by the defendants, to the knowl- that the appellants were guilty of the forcible edge of the plaintiff, was about June 1, 1903, entry and forcible detainer as alleged, and when they removed several yards of earth that no other verdict than that returned by therefrom. The plainti immediately pro- the jury shoud be permitted to stand. tested by letter and later had a conference The judgment of the court below should with one of defendants and his attorney at therefore be affirmed, and it is so ordered. which they requested the plaintiff to sue for trespass. In the latter part of June 1905, the MOUNT, C. J., and FULLERTON, HADplaintiff saw some fencing material on the LEY, DUNBAR, and CROW, JJ., concur. ground, and, supposing that the defendants intended to inclose the disputed tract, asked what they proposed to do, and was informed

(45 Wash. 41) that they intended to build a fence along the

BRITTAIN V. PIONEER STATE BANK north line of the tract. The plaintiff in

et al. formed them that he owned the land and for

(Supreme Court of Washington. Dec. 15, 1906.) bade them to build the fence. Soon after PRINCIPAL AND AGENT-AUTHORITY OF AGENT this the plaintiff returned home in the even


Where plaintiff sent a draft to a bank and ing and found posts set along the north line of authorized it to offer defendant a certain sum the disputed tract and wire stretched upon for her farm, to pay her the amount of the them. The next morning he removed some

draft, the balance to be paid at a subsequent

date, and she refused the offer, of which fact of the wire and attempted to remove the

the bank notified plaintiff and plaintiff directed posts but sound that a board had been nailed

the bank to return the draft, stating that the across the bottom. He then got an ax and transaction might be considered as closed, but attempted to split the posts, but one of the

it did not appear that the bank received this

notice before the subsequent acceptance of the (defendants came out with an ax or hatchet

offer by defendant, plaintiff is not entitled to and placed it on top of the post so that the recover the amount of the draft. plaintiff could not strike it. A scuffle en- [Ed. Note.-For cases in point, see Cent. Dig. sued in which the defendant took the plain

vol. 40, Principal and Agent, $$ 60, 62, 564.) tiff's ax from him, threw the plaintiff down Crow, J., dissenting. and held him, stating that he would let him

Appeal from Superior Court, Adams Counup if he promised to let the fence alone.

ty; W. T. Warren, Judge. This action was commenced immediately

Action by A. B. Brittain against the Piothereafter. The jury returned a verdict in

neer State Bank and another. From a judgfavor of the plaintiff without damages, upon

ment in favor of defendants, plaintiff apwhich a judgment was entered. From this

peals. Affirmed. judgment the defendants have appealed.

The only errors assigned are in the giving Richardson, Roche & Onstine, for appelof instructions and in the refusal to give cer- lant. O. R. Holcomb and Zent & Lovell, for tain instructions requested by the appellants. respondents. It must be conceded that the charge of the court as a whole has but little application to RUDKIN, J. The plaintiff, Brittain, is a a statutory action of this kind. Much of 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. 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 suin 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: 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. The complaint therefore failed to state a cause of action, and the judgment is affirmed.

MOUNT, C. J., and FULLERTON, IADLEY, 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 PROCEEDINGS.

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 the city deposited the balance due on the of the amount was made by the city to the judgment with the clerk of the superior court court in which the judgment was rendered, ac

in the condemnation proceeding on the 14th companied by petition for its repayment to the city, this was no bar to the mandamus pro- dre of February, 1906, accompanied by a peticeeding.

tion praying that the funds so deposited be 8. JUDGMENT - MERGER AND BAR - DEFENSES returned to the city. The deposit was made MERGED.

several days after the issuance of the alterWhere a city brought condemnation proceedings, in which it sought to introduce evi

native writ. The court sustained an objecdence of a lien for taxes and assessments for tion to the introduction of testimony under a certain amount in order to reduce the judg- the answer or return, and awarded the perment for damages, but the defendants objected

emptory writ as prayed. From this judgment on the ground that the proper time to claim such offset would be when the city came to pay

the defendants appeal. the award, and the city acquiesced, the judg- The payment of the balance due on the ment was conclusive on the city, and such judgment into court in the condemnation profacts were no defense to mandamus by the

ceeding, after the issuance of the alternative owners of the property to compel payment of the full amount of the judgment.

writ, accompanied by a petition to refund the Appeal from Superior Court, Spokane

money to the city, constituted no defense to

this action. County; Miles Poindexter, Judge.

The respondents were entitled Mandamus by the state, on the relation of

to have the money paid into court uncondiFrancis H. Cook and wife, against Robert

tionally; and the conditional payment was

unavailing for any purpose. There is no merFairley and others. From a judgment for

it in the contention that the respondents will plaintiffs, defendants appeal. Affirmed.

have the money and the warrant, as they J. M. Geraghty and Alex. N. Winston, for

have never accepted the money, and the city appellants. Belt & Powell, for respondents. is entitled to its return at any time. The con

tention that the pendency of the motion to RUDKIN, J. On the 17th day of January, have the money refunded to the city in another 1906, judgment was entered in the superior department of the court constituted a bar to court of Spokane county in favor of the re- the present action is equally without merit, as lators herein and against the city of Spokane that proceeding was not pending at the time for the sum of $1,250 and $41.60, costs of of the commencement of the present action. suit, in a proceeding instituted by the city to Nor did the proceedings had in the condemnacondemn and appropriate for public purposes tion proceeding as detailed above constitute certain real property belonging to the relat- a defense. Undoubtedly the evidence tenderors. $970.17 was paid on account of this judg- ed was competent and admissible in that proment, and on the 8th day of February, 1906, ceeding, as the defendants in that action the relators acknowledged satisfaction of the were only entitled to recover the value of judgment, presented a certified transcript of their land, less the amount of the valid liens the docket thereof to the officers of the city and charges held by the city against it, but authorized to draw orders on the treasurer, that question is not subject to review here. as prescribed by section 5676, Ballinger's Ann. A judgment of a court of competent jurisCodes & St. and demanded a warrant for the diction delivered on the merits is final and balance due. The warrant was refused, and conclusive between the parties in a subsethis proceeding was instituted to compel the quent action, not only as to all matters acissuance of such warrant. The petition for tually litigated and determined in the forthe writ of mandamus sets forth substantial- mer action, but also as to every ground of ly the foregoing facts. The return admits recovery, and a defendant in a mandamus the allegations of the petition, and avers proceeding to enforce the collection of a affirmatively that at the time of the rendi- judgment is estopped to plead matters which tion of the judgment in the condemnation might have been urged by way of defense in proceeding the city of Spokane held liens the tribunal in which the judgment was renagainst the property appropriated in the sum dered. Smith v. Ornsby, 20 Wash. 396, 55 of $321.43, being the amount in controversy Pac. 570, 72 Am. St. Rep. 110; United States here, for general taxes due the city and for v. New Orleans, 98 U. S. 381, 25 L. Ed. 225. sidewalk and street grade assessments; that It is often competent to prove that some matsuch taxes and assessments were offered in ter or issue in a cause was not determined, by evidence at the trial of the condemnation reason of the decision turning upon some othproceeding; that the defendants in said ac- er point, or otherwise; but this cannot be tion objected to the introduction of such done where the proof tendered will contradict taxes and assessments in evidence, on the or defeat the operation of the judgment. In ground that the proper time to claim such the case at bar the jury found in the condemoffset would be when the city came to pay nation proceeding that the respondents were the award; that the attorney for the city ac- damaged in the sum of $1,250, and the court quiesced in this view of the law and did not rendered judgment for that amount. Now, insist upon his offer; and that by reason of in this collateral proceeding, the appellants the foregoing facts the city is entitled to an are attempting to contradict that judgment offset in the above amount against such judg- by showing that the damages were, in fact, ment and costs. It was further averred that $321.43 less than the amount awarded by the

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