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by this court December 6, 1906) 87 Pac. 826, where we held that Baker, who was killed by a logging train backing onto him while he was attempting to cross a railway track in a switchyard where many engines and trains were constantly passing, was guilty of contributory negligence in not stopping to look and listen before stepping on the track, although it was the conceded duty of the company in that case to have a lookout, or rear brakeman, upon the train to protect the people passing along the street. If there is any difference, this is a pronounced case of contributory negligence; for the appellant was a brakeman of many years' experience, perfectly familiar with the yard and the dangers incident thereto. He testified frankly that, in the performance of his duties, he was in and about the roundhouse nearly every day, and knew how the engines were handled about the roundhouse and the yard. He also testified that he did not look to see if the engine was coming, because the steam was following him and around him to such an extent that he could not have seen if he had looked; that as a rule at that time the engines around the yard were blowing off more or less steam.

It seems to us that a man of experience who would place himself in the position that the appellant did, under the circumstances which he describes, cannot claim that he was exercising any degree of prudence or care whatever; but that, on the other hand, he was guilty of a high degree of negligence. While, of course, the general doctrine that the servant has a right to rely on the rules of the company in relation to warning cannot be gainsaid, the law does not contemplate a blind, unreasoning reliance, but the servant must exercise ordinary care himself, even while relying on the exercise of duty on the part of the master. There are instances when, from the necessities of the case, and by reason of the duties imposed upon the servant, he must be protected in absolute reliance, as if, for instance, his duties called him under a car, or onto some dangerous place on or about a car or engine, where he was absolutely dependent upon the performance of duty on the part of the master. But such is not this case. Here there were mutual duties to be performed. The appellant was a healthy, competent man, presumably in the possession of all of his senses. These senses he neglected to exercise, and it was the two acts of of negligence-negligence on his part and negligence on the part of the respondents-concurring, which caused the accident. Under such circumstances he cannot recover.

The judgment will be affirmed.

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

(45 Wash. 114)

GELLERMANN v. ATLAS FOUNDRY &

MACH. CO. et al.

(Supreme Court of Washington. Dec. 19, 1906.) 1. CORPORATIONS STOCK SUBSCRIPTIONS -ALTERATION OF BY-LAWS.

A change in the by-laws of a corporation as to the declaration of dividends, made after a person became a stockholder and after dividends accrued, cannot affect his rights to the dividends.

2. SAME-CONSTRUCTION OF BY-LAW.

Under a by-law of a corporation providing that the trustees may at their discretion declare dividends on the paid-up stock, and that divi dends accruing on any stock that may have been subscribed for and not paid up shall be applied on the unpaid subscription, when a dividend is declared on the paid-up stock, a like dividend to be applied on unpaid subscriptions for stock accrues and must be paid as a matter of course [Ed. Note.-For cases in point, see Cent. Dig. vol. 12, Corporations, §§ 561, 563.]

Root, Crow, and Hadley, JJ., dissenting. Appeal from Superior Court, Pierce County; Mason Irwin, Judge.

Action by A. B. L. Gellermann against the Atlas Foundry & Machine Company and others. From a judgment in favor of defendants, plaintiff appeals. Reversed, with direction to enter decree for plaintiff.

Walter Christian and Chas. T. Peterson, for appellant. J. W. Quick, for respondents.

RUDKIN, J. The Atlas Foundry & Machine Company was incorporated on the 6th day of February, 1903, with a capital stock of $11,000, divided into 1,100 shares of the par value of $10 each. Article 6 of the bylaws of the company, as adopted on the 7th day of February, 1903, provides as follows:

"The trustees may, from time to time, at their discretion, declare dividends upon the paid-up stock out of the net profits arising from the business of the company.

"The dividends accruing upon any stock that may have been subscribed for and not paid up shall be applied upon such unpaid subscription."

G. R. Couls subscribed for 250 shares of the capital stock at the time of the organization of the company, 147 of which were not paid up. On January 2, 1904, Couls assigned to the plaintiff all his right, title, and interest in or to the unpaid stock subscribed for, and at a meeting of the trustees held on the 6th day of January following, the transfer was approved and the plaintiff recognized as the holder of the unpaid stock subscribed by Couls. No certificate appears to have been issued for these 147 shares, but the plaintiff was at all times recognized as the holder thereof, and the stock was voted by the plaintiff and other members of the corporation at all stockholders' meetings. In addition to the 147 shares of unpaid stock, the plaintiff is the owner of 78 shares of fully paid-up stock, which he acquired from Couls at or about the same time. George C. Dupea owned 114 shares of paidup stock and 61 shares on which the sub

scription had not been paid. The balance of the stock was subscribed and fully paid up. On the 5th day of January, 1905, the trustees declared a dividend of 15 per cent. on the paid-up stock out of the net profits arising from the business of the company, and on January 2, 1906, a like dividend of 60 per cent. was declared and paid. On neither occasion was any dividend applied on the unpaid stock subscribed for and held by the plaintiff. This action was brought to compel the defendants to issue to the plaintiff a certificate for the 147 shares of stock and to allow him credit on his subscription for the dividends which should have been applied thercon.

The court below gave judgment for the defendants, from which the present appeal is prosecuted.

Two questions are presented by the appeal: First, a determination as to the provisions of the by-law which should govern the rights of the parties to this action; and, second, the proper construction of such by-law.

The respondents contend: That article 6 of the by-laws of the company, as submitted to the stockholders for adoption at their first meeting, was as follows:

"The trustees may, from time to time, at their discretion, declare dividends out of the net profits arising from the business of the company.

"The dividends accruing upon any stock that may have been subscribed for and not paid up shall be applied upon such unpaid subscription."

That before adoption the words "upon the paid-up stock" were inserted in the first paragraph, after the word "dividends," and the second paragraph was stricken out. That the secretary inserted the words "upon the paid-up stock" in the first paragraph, but neglected to strike out the second paragraph, and that a resolution was adopted by the stockholders on the 7th day of February, 1906, reciting this error in the by-laws as adopted, and correcting the article to read as originally agreed upon.

At the time the appellant became a stockholder in the company, article 6 of the bylaws read as set forth in the first part of this opinion, and a change made in the bylaws after the appellant became a stockholder and after the dividends in controversy here had accrued, even though made for the ostensible purpose of correcting a mistake, cannot affect the appellant's rights. This case must therefore be determined from a consideration of the by-law as it stood when the appellant became a stockholder and when the dividends were declared.

It is contended that the matter of declaring dividends was vested exclusively in the discretion of the trustees, but this construction entirely ignores the second subdivision of article 6 of by-laws. The by-law must be so construed as to give force and effect to each and every of its provisions, if possible, and this can only be done by holding

that the matter of declaring dividends on the paid-up stock out of the net profits of the business rests in the discretion of the trustees; but, when such a dividend is declared on the paid-up stock, a like dividend to be applied on the unpaid subscription for stock not paid up accrues and follows as a matter of course. While the by-law is by no means free from ambiguity, this construction gives effect to all its provisions and works no injury to the stockholder who has paid his subscription in full. A stockholder is not in default upon his subscription until a call is made by the corporation, and the corporation is at liberty to call in the subscription at any time. If not paid on demand, the stock is subject to sale and forfeiture in such manner as may be provided in the by-laws. Section 4262, Ballinger's Ann. Codes & St.

We are therefore of opinion that the appellant was entitled to a certificate for the 147 shares of stock, and to a credit on the unpaid paid subscription in a sum equal to the dividends declared and paid on the paid-up stock, as of the date of such dividends; and the judgment is reversed, with direction to enter a decree accordingly.

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

ROOT, J. I dissent. It is admitted that at the time appellant purchased his stock the by-laws provided that the trustees might, "at their discretion, declare dividends upon the paid-up stock." That is exactly what they did. Assuming that the second part of the by-law quoted was still in force, that was intended to apply (as it plainly says) when there were "dividends accruing upon any stock that may have been subscribed for and not paid up." In this instance there were no such dividends accruing. If only a part of the net profits had been applied as dividends upon the paid-up stock, and the balance declared as dividends upon all the stock or upon the unpaid stock, then there would have been occasion for the latter section of the by-law to apply; and in such case the "dividends accruing" upon the uppaid stock would be credited as payment, pro tanto thereupon. The object of the latter portion of the by-law was to compel the subscriber for any unpaid stock to pay thereupon any "dividend accruing," instead of receiving the dividend in cash while his indebtedness to the company for the stock remained unpaid. It was not intended to modify the plain language, or defeat the manifest purpose, of the first clause of said bylaw. The two paragraphs are, to my mind. in no sense inconsistent. Under the plain terms of that portion of the by-law relied on by appellant, he was entitled to no credit until a dividend accrued. It did not accrue for the simple reason that the trustees, under the

full power expressly conferred by the first paragraph of the by-law, applied all of the net profits to the payment of dividends upon the paid-up stock. Knowing at the time he bought his stock that the by-laws conferred this discretion and authority upon the trustees, appellant cannot be heard to complain of their said action.

CROW and HADLEY, JJ., concur with ROOT, J.

(45 Wash. 63)

WHEELER et al. v. CITY OF ABERDEEN et al.

(Supreme Court of Washington. Dec. 18, 1906.) 1. MUNICIPAL CORPORATIONS TORTS-DESTRUCTION OF PROPERTY.

fire limits in violation of a contract and an ordinance, evidence was inadmissible to show that the city had not removed other buildings maintained in violation of the ordinance and similar contracts.

8. SAME-DAMAGE.

In an action against a city for the destruction of a frame building maintained within the fire limits in violation of a contract and an ordinance, the owner could not recover damages to his leasehold interest in the land upon which the building was located or for mental distress, shame, humiliation, or disgrace.

Appeal from Superior Court, Chehalis Coun ty; W. O. Chapman, Judge.

Action by N. G. Wheeler and others against the city of Aberdeen and others. From a judgment for plaintiffs, defendants appeal. Reversed, and new trial ordered.

John C. Hogan and R. E. Taggart, for ap

Though a city may have a right to destroy pellants. J. C. Cross and J. W. Robinson,

a building maintained within the fire limits in violation of a contract and an ordinance, it is liable for any needless damage occasioned in the destruction.

2. PLEADING-ISSUES-EVIDENCE ADMISSIBLE UNDER PLEADINGS.

In an action against a city for destroying a frame building, the city pleaded in defense that, upon plaintiffs' failure to remove it from the fire limits, plaintiffs sought to enjoin the city from a threatened destruction of the building, and that judgment was rendered for the city, there being a finding that plaintiffs had breached an agreement made at the time permission. was granted for the temporary erection of the building that they would remove it within 6 months. Held, that plaintiffs' failure to deny that the finding had been made concluded the question as to their having made the agreement, and therefore, evidence was inadmissible to show duress or fraud on the part of the city in the making of the agreement.

3. JUDGMENT-CONCLUSIVENESS OF ADJUDICA

TION.

An adjudication sustaining the right of a city to remove a frame store building from its fire limits being conclusive against a subsequent action for damages for the removal, evidence was inadmissible in such action to show was the damage to the owner's business Occasioned by the removal.

4. SAME PERSONS CONCLUDED MUNICIPAL OFFICERS.

An adjudication in an action against a city. its mayor, and marshal was conclusive against a subsequent action on the same issue against the city, the same mayor, and the marshal's successor.

[Ed. Note. For cases in point, see Cent. Dig. vol. 30, Judgment, § 1096.]

5. SAME-ADJUDICATION AS PARTIAL DEFENSE.

An adjudication, sustaining the right of a city to remove a building from its fire limits. was available as a defense in a subsequent action for damages for the removal of the building though by reason of the wanton manner in which the removal was made the adjudication might be only a partial defense to the action. 6. MUNICIPAL CORPORATIONS DESTRUCTION OF BUILDINGS-ACTION FOR DAMAGES-EVIDENCE.

In an action against a city for the destruction of a frame store building maintained within fire limits in violation of a contract and an ordinance, evidence was inadmissible to show the owner's expense in removing his stock from the building. 7. SAME.

In an action against a city for the destruction of a frame building maintained within the

for respondents.

CROW, J. The plaintiffs, N. G. Wheeler, and F. C. Wheeler, copartners, as Wheeler Bros., Florence Wheeler and Minnie Wheeler, their respective wives, commenced this action against the city of Aberdeen, a municipal corporation. John Lindstrom, and James Birmingham, to recover damages for the destruction of a certain frame building, together with its contents, and for other injuries. John Lindstrom and James Birmingham were respectively the mayor and acting marshal of the city of Aberdeen. The complaint alleges that on October 10, 1905, the plaintiffs held an unexpired lease on a certain lot in the business section of the city of Aberdeen; that they were the owners, and in possession, of a certain frame store building located thereon; that they were engaged in conducting a retail mercantile business, having and owning for that purpose a stock of coffees, teas, spices, glassware, queensware, crockery, and groceries, together with certain furniture and fixtures; that they were realizing a net profit of $300 per month; that on October 10, 1905, and on other dates immediately thereafter, the defendants wrongfully, unlawfully, with violence and force, did take possession of the said property, and the whole thereof, did oust plaintiffs therefrom, and did wrongfully destroy such building, improvements, and fixtures; that plaintiffs were thereby compelled to remove their stock of goods; that the building was rendered unfit for occupancy; that their business was destroyed; that such acts were committed in the presence of a large number of plaintiffs' acquaintances, subjecting plaintiffs to great indignities, mental suffering, humiliation, shame, and disgrace, and that they sustained damages in the total sum of $7,812. The defendants admitted the destruction of the building, but denied all wrongful acts alleged in the complaint.

For a first affirmative defense they alleged: That on October 16, 1903, the city of Aberdeen was visited by a great fire, which destroyed the entire business district. That on

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October 17, 1903, a mass meeting of citizens requested the city council to enact an ordinance creating fire limits. That on said October 17, 1903, at a special meeting, the city council passed Ordinance No. 372, entitled "An ordinance creating fire limits and dividing the city of Aberdeen into two building districts, and providing for the construction, alteration, and repair of buildings therein,' etc. That on October 19, 1903, the city council, at a special meeting, passed the following resolution: "Resolution. Be it resolved by the city council of the city of Aberdeen, as follows: That until such time as an ordinance can be enacted and put in force, no person, firm, or corporation shall be permitted to use any of the streets or alleys within the district hereinafter described for the deposit or unloading of any lumber or building materials, without first obtaining a written permit for a temporary structure from the city clerk. The following is the district hereinbefore referred to": [Here follows description of the district] "That for the period of time above referred to, no permit shall be granted for any structures or buildings within said area, but temporary structures not exceeding one story in height, and the persons applying for such permit to erect such temporary structure or building shall make application therefor in writing, signed by him or his agent in substance as follows: 'Application for Permit to Erect a Temporary Building. To the city of Aberdeen: I hereby apply for a permit to erect a temporary building, in accordance with the outline of plans hereto attached, upon the premises described in the annexed schedule. And in consideration of such permit being granted, I hereby undertake and agree with the city of Aberdeen to remove said temporary structure within six months after this date, or to make the same conform with the ordinances of the city of Aberdeen then in force, with reference to fire protection and in event of my failure so to do, within the said time I hereby waive all claim for damages, which may accrue to me or my assigns by reason of the removal or destruction of said buildings, by the city authorities, after said date.'

That upon filing such application with the city clerk, duly signed, with an outline of plan of the proposed temporary building the city clerk shall issue to such applicant a permit. ***" That the plaintiffs had full knowledge and notice of Ordinance No. 372, and the above resolution, both of which were published in the official paper of the city; that the city council, at a regular meeting held on October 21, 1903, passed Ordinance No. 375, substantially the same as Ordinance No. 372; that Ordinance No. 375 was published on October 24, 1903, and is still in full force and effect; that plaintiffs' property is, and was, located within the first building district created by such resolution and ordinances; that the resolution was passed, as plaintiff's well know, for the purpose

of holding the situation within the burned district in statu quo, until such time as Ordinance No. 375 might be enacted at a regular meeting, and become operative; that pursuant to such resolution of October 19, 1903, and other proceedings of the city council, the plaintiff's applied to the city for a building permit for the erection of a one-story frame building upon their leased lot; that, in consideration of the granting of such permit, they entered into a written agreement with the city that the building to be erected by them should be removed within six months after October 19, 1903, or made to conform to the ordinances of the city then in force, and that in the event of their failure to remove the same, they would waive all claims for damages which might accrue to them by reason of its removal or destruction by the city authorities; that, in pursuance of such permit, the plaintiffs erected the building mentioned in the complaint; that, after the expiration of six months, they failed and refused to remove the same or to make it conform to the ordinances of the city, although the defendants had made repeated demands upon them so to do, and had also served upon them a resolution of the city council passed August 2, 1905, requiring its removal; that the defendants Lindstrom and Birmingham are respectively the mayor and acting marshal of the city of Aberdeen, and were acting as such under the authority of the ordinances, resolutions, and instructions of the city of Aberdeen, and also under the authority of the contract entered into by the plaintiffs with the city when they destroyed the plaintiffs' building, and that they did so without inflicting any unnecessary damages.

For their second affirmative defense the defendants alleged that on or about August 10, 1905, when the defendants, in pursuance of the resolution of August 2, 1905, were about to destroy the building, the plaintiffs herein filed in the superior court of Chehalis county a complaint and application for injunction; that in such action the plaintiffs herein were plaintiffs, and the city of Aberdeen and John Lindstrom, as mayor, and H. H. Carter, as marshal, were defendants; that in their complaint the plaintiffs alleged their ownership of the building here involved, pleaded the enactment of Ordinance 375, and the resolution of August 2, 1905, and alleged that the city, through its mayor and marshal, threatened to summarily destroy their building, and that Ordinance No. 375 and the resolution of August 2, 1905, and other acts and proceedings of the city looking towards the removal of their building were invalid; that an ex parte restraining order coupled with a show-cause order was granted by the court and served on the defendant therein, who are the defendants in this action; that the city of Aberdeen, John Lindstrom, as mayor, and H. H. Carter, as marshal, appeared and made answer, alleging the various steps and

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proceedings taken by the city creating fire district No. 1, the enactment of Ordinance No. 375, the issuance of a permit to the plaintiffs, their contract with the defendant city, the passage of the resolution of August 2, 1905, and the right of the city to destroy plaintiffs' temporary building; that to such answer the plaintiffs replied; that upon the issues joined trial was had, evidence adduced; and that after a hearing on the merits the court made findings of fact and conclusions of law in favor of the defendants, which were attached to and made a part of the answer herein; that final judg ment was entered in favor of the defendants, and that thereby all the matters and things claimed by the plaintiffs in their complaint herein were concluded, decided, and disposed of by the court in favor of the defendants; that the findings, conclusions, and judgment in such former action have not been vacated, reversed, or set aside, but are in full force and effect on all the parties.

The plaintiffs having replied, a jury trial was had, and a verdict was returned in favor of the plaintiffs for the following damages: For loss by destruction of building, $400. For loss by damage to stock of goods and costs of removal, $400. For damages to the business of plaintiffs, $500. From a judgment entered upon this verdict the defendants have appealed.

The above statement discloses the situation surrounding the parties. It is undisputed that the fire took place as alleged; that the ordinances and resolutions were passed; that the building permit was issued; that the contract was actually signed by plaintiffs (although they allege in their reply and testify that it was signed under duress); that the building was erected by plaintiffs; that notice for its removal was given; that the injunction suit was instituted; that final judgment was rendered therein, and that the appellants destroyed the building. The record, however, shows much dispute as to the validity of the ordinances, resolutions, building permit, and plaintiffs' agreement with the city; as to the effect of the judg ment in the injunction suit; as to the amount of damages sustained by plaintiffs, and as to the liability of the appellants therefor.

The first contention of the appellants is that the trial court erred in refusing to discharge the jury, and dismiss the action. Assuming that the appellants as they contend were entitled to destroy respondents' building, we think it was their duty to do so in a careful and prudent manner, without unnecessary damage or injury to the material of which it was constructed, or to the furniture, fixtures, and merchandise which it contained. There is evidence tending to show that they summarily proceeded with haste and violence, after the dissolution of the injunction, and that, in so doing, they unnecessarily destroyed and rendered worthless the ma

terial of which the building had been constructed, and that they also seriously and needlessly damaged the respondents' furniture, fixtures, and merchandise. This they were not entitled to do. If, in fact, they did any unnecessary damage, they should be held liable therefor. Although the appellants denied having done any unnecessary damage, the evidence was conflicting, and the issue of the existence and amount of such unnecessary damage, if any, was properly submitted to the jury for their determination.

Appellants further contend that the trial court erred in permitting the respondent N. G. Wheeler to testify in rebuttal that he signed the contract for removal and waiving damages, under circumstances tending to show fraud or duress on the part of the city, insisting that the court thereby opened a question which had been concluded by the former adjudication in the injunction suit. By their answer the appellants pleaded all of the issues in the former action, and also set forth at length the findings of fact, conclusions of law, and final judgment entered therein. The seventh finding in such action pleaded herein, reads as follows: "That on the 21st day of October, 1903, the plaintiffs herein, N. G. Wheeler and F. C. Wheeler, copartners as Wheeler Bros., applied to the city of Aberdeen for a building permit to erect a temporary wooden building not exceeding one story in height, and thereupon the said Wheeler Bros. entered into an agreement in writing with the city of Aberdeen wherein they agreed, in consideration of such permit being granted, to remove such temporary building within six months after said date, or cause the same to conform to the ordinances of the city of Aberdeen with zelation to fire protection which might then be in force, and thereupon the city of Aberdeen granted to the said Wheeler Bros. a permit for a temporary building; that a copy of said agreement and permit is set out in paragraph 6 of section 8 of the defendants' answer, and that said agreement was entered into and permit granted to the plaintiffs under the provisions of the resolution passed by the city council on the 19th day of October, 1903; that at the time of taking out said building permit for said temporary building, and at the time of signing of said agreement the plaintifts, Wheeler Bros., well knew that the city of Aberdeen was contemplating the enactment of an ordinance for fire protection in the city of Aberdeen covering the district described in the resolution of October 19, 1903, the city authorities deeming Ordinance No. 372 to be void on count of having been passed at a special meeting of the council." The reply did not deny that this finding had been made, and it must be taken as admitted. Hence, the question as to whether the respondents made the agreement was concluded by the former adjudication. Under the issues raised by

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