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er errors are assigned, but they relate to matters that will not occur on a retrial.

For the errors above discussed, the judgment is reversed, and a new trial ordered.

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

DUNBAR and ROOT, JJ., not sitting.

(44 Wash. 623)

HAMMOCK v. CITY OF TACOMA. (Supreme Court of Washington. Dec. 8, 1906.) 1. MUNICIPAL CORPORATIONS DEFECTIVE SIDEWALKS-TRAVELERS--CARE REQUIRED. A person having a lawful right to travel on a sidewalk is entitled to assume that the walk is in ordinary repair, and that there is no latent defect which may cause injury.

[Ed. Note. For cases in point, see Ceut. Dig. vol. 36, Municipal Corporations, §§ 1673, 1678.] 2. SAME CONTRIBUTORY NEGLIGENCE.

A traveler on a sidewalk is guilty of contributory negligence only when he is injured by some patent defect which he could have avoided by the exercise of ordinary care, or by some defect he knows exists in the waik, whether latent or patent, which he did not take care to avoid.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 36, Municipal Corporations. §§ 1673, 1677, 1678.]

3. SAME-DUTY OF CITY.

A municipal corporation is bound to keep its sidewalks in ordinary repair, and to examine not only the surface, but the supports of the walks, whenever it has reasonable cause to believe that the supports are becoming defective. [Ed. Note. For cases in point, see Cent. Dig. vol. 36. Municipal Corporations, § 1612.] 4. SAME-NOTICE OF DEFECTS.

Where a city sidewalk had been constructed for a number of years, and for more than a year had been out of repair and unsafe in places on each side and near to the place where plaintiff was injured thereon, such facts were sufficient to charge the city with notice of the condition of the walk at the place of the accident.

[Ed. Note. For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, §§ 1647-1649.] 5. TRIAL - INSTRUCTIONS - FORM AND REQ

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Where, in an action for injuries on a defective sidewalk, there was evidence that the walk was old and had been defective on both sides of the place of the accident for more than a year. evidence as to the extent of the sidewalks within the city and under its control, was inadmissible.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 36, Municipal Corporations. §§ 1727-1729, 1613.]

7. APPEAL-FORMER DECISIONS--LAW OF THE CASE.

Where, on a prior appeal, it was held that a notice to a city of an injury on a defective sidewalk was sufficiently definite in its descrip

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Plaintiff was injured on a defective city sidewalk, and two witnesses testified that plaintiff's daughter pointed out the place of the injury to plaintiff's attorney in June or July, 1904, and located it at a different place than that specified in the notice and complaint. The daughter in rebuttal denied that she was ever on the walk with plaintiff's attorney, prior to March, 1905. Plaintiff's attorney in argument, stated that as to his being there, the witnesses were mistaken, that he was not on the ground until February, 1905. Held, that the attorney's statement of fact was justified by the evidence, and was not reversible error, because he stated the conclusion from the evidence in direct language.

[Ed. Note.--For cases in point. see Cent. Dig. vol. 46, Trial, § 294.]

9. APPEAL-MISCONDUCT OF COUNSEL-GROUND

FOR REVERSAL.

Defendant's attorney commented on the absence of the husband of plaintiff's daughter and plaintiff's son, who were witnesses to certain transactions connected with plaintiff's injury, and who had not testified. In reply plaintiff's counsel stated that they were poor people, and that since the action was commenced, they had obtained lucrative positions with defendant city and had asked him not to call them unless it was necessary. Held, that such argument, though error, was not ground for reversal, where it apparently in no way affected the result.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3. Appeal and Error, § 4135.]

Appeal from Superior Court, Pierce County; Thad Huston, Judge.

Action by Amanda Hammock against the city of Tacoma. From a judgment for plaintiff, defendant appeals. Affirmed.

See 82 Pac. 893.

C. M. Riddell, R. E. Evans, and J. W. Quick, for appellant. Govnor Teats, for respondent.

FULLERTON, J. The respondent brought this action to recover for personal injuries. In her complaint she alleged that on June 12, 1904, while she was walking along one of the sidewalks in the appellant city in the company of her daughter, the daughter stepped upon a broken board in the walk, or a board which broke under her weight, causing one end of it to raise up; and that she tripped over the raised end of the board and fell to the walk, which fall caused the injuries of which she complains. The city took issue upon the allegation of the complaint, and a trial was had, which resulted in a verdict and judgment in her favor. The city appeals.

The first contention on the part of the appellant is that the evidence was insufficient to justify the verdict; the precise objection being that there was no evidence tending to show that the city had knowledge prior to the accident, either actual or constructive, of the particular defect that caused the injury. The evidence relied upon by

the respondent to show notice on the part of the city was the testimony of certain witnesses who resided in the vicinity of the place of the accident. These witnesses testified that the walk in front of the block where the accident occurred had been down for a number of years, and been out of repair for more than a year prior to the accident: that the stringers supporting the walk were decayed, and in some places entirely gone; that the ends of the boards forming the walk were in many places rotted off, leaving them loose so that they would give way at one end and tilt at the other; and, generally, that the walk was unsafe to travel upon. None of them, however, were able to testify that they had noticed the condition of the walk at the precise place of the injury, and the respondent testified, and the jury found, that the defect at that place was not so apparent as to be observed by the exercise of ordinary care and caution. It is on this testimony and finding that the appellant bases its contention. It argues that notice of defects in the immediate vicinity of a particular place is not notice of defects at that place; and that if the defect causing the injury was not observable to the respondent by the exercise of ordinary care and caution, it could not be observable to the city officers by the exercise of the same care, and hence the city could not be chargeable with constructive notice under the testimony. But the fallacy of this reasoning lies in the assumption that the degree of care is the same in each instance. A person having a lawful right to travel upon a sidewalk has the right to assume that the walk is in ordinary good repair, and that there is no latent defect which may cause an injury. He is guilty of contributory negligence, therefore, only where he is injured by some patent defect which he could have observed and avoided by the exercise of ordinary care, or by some defect he knows exists in the walk whether latent or patent which he did not take ordinary care to avoid. But with the city it is different. It is charged with the duty of keeping its walks in ordinary repair. It must take notice that time and use will destroy sidewalks no matter how carefully constructed, or how safe and secure they may have been when originally constructed. It must, not only examine the surface, but the supports, of the walks whenever it has reasonable cause, to believe that these supports are getting out of repair. In a word, it must exercise that degree of care that common sense declares to be neces sary in order to keep its walks reasonably safe for ordinary use. Tested by these rules, it is apparent that the respondent did not have to prove. in order to charge the city with notice, that the particular plank that caused her injury was so obviously defective that it could have been discovered by the mere observation that a traveler along the walk is required to exercise to avoid injury.

On the contrary. proof that the walk had been constructed for a number of years. and that it had been for more than a year out of repair and unsafe in places on each side of and near to the place of the accident. was proof sufficient to charge the city with notice of the condition of the walk at the place of the accident; and being charged with such notice, its failure to repair it, or warn against its use, was such negligence as would render it liable to any one injured by reason of its defective condition who was not himself guilty of negligence which contributed to the injury.

The

It is next assigned that certain instructions given by the court stated the law too broadly, inasmuch as they authorized the jury to find for the respondent, even though they might not find certain other conditions necessary to render the city liable. particular paragraphs of the charge pointed out might be subject to the criticism made on them were they not qualified by the further instructions of the court. But we find they were so qualified. In an instruction given almost immediately following the instruction complained of, the court stated the limitation on the city's liability in almost the very language counsel insist it should have been stated. This was enough. It is not necessary that each paragraph of the court's charge contain the limitations and modifications of the general rules announced. To do so usually leads to prolixity which tends rather to confuse the jury than to enlighten them.

It is next complained that the court erred in refusing to permit the assistant city engineer to testify to the extent of the sidewalks within the city of Tacoma under its control. But we think there was no error in this ruling. In cases where the defect caus ing the injury is of recent origin and it is sought to charge the municipality liable for the defect with constructive notice, it has sometimes been held that it was proper to show the length of the walks under the control and supervision of the municipality for the purpose of showing whether the munic ipality ought, in the exercise of reasonable diligence, to have discovered and remedied the defect in the limited time elapsing between the origin of the defect and the injury, but such a showing could not have enlightened the jury in this case. The contest here was over the question whether in fact any defect existed at all. If the respondent's witnesses were to be believed it stood as a matter of law that the city officers were negligent, while on the other hand if the city's witnesses were to be believed there was no liability in any event. In such a case evidence that the length of the sidewalks was great or little, could not affect the case one way or the other.

It is next insisted that the notice of the injury given the city was not sufficiently definite in its description of the place of the

accident. But this is the very question, and the only question, decided by this court when the case was before it on the former appeal. Hammock v. Tacoma, 40 Wash. 539, 82 Pac. 893. The decision at that time holding the notice sufficient became the "law of the case," and the court cannot now properly review it whether right or wrong. Wilkes v. Davies, 8 Wash. 112, 35 Pac. 611, 23 L. R. A. 103; Furth v. Snell, 13 Wash. 660, 43 Pac. 935.

On the trial the appellant introduced two witnesses for the purpose of showing that the daughter of the plaintiff, in pointing out the place of injury to her attorney, located the place in front of a block some distance from the place it was claimed in the notice and complaint that the accident occurred. In rebuttal of this, the daughter was recalled, and testified that she was not at the place mentioned with the respondent's attorney at the time the appellant's witnesses testified they saw them there; testifying further in that connection that she was there with the attorney for the first time just preceding the former trial, which occurred in March, 1905, while the appellant's witnesses testified that they saw her there in the month of June or July in the year before. On the argument commenting on this evidence the attorney said: "As to myself being out there, I wish to state simply that the witnesses are mistaken. Their identification is off. I never was on that ground until February, 1905." This statement was objected to on the ground that it was making use of facts within the personal knowledge of the attorney, not justitied by the evidence. But plainly the attorney stated nothing the evidence did not justify. He might have made the statement less personal by using the phrase, "The evidence shows," or one of a similar nature, but because he stated the conclusion in direct language is not cause for reversing the judg ment. In the course of the trial it was shown that a Mr. Bradshaw, the husband of the respondent's daughter, and a Mr. Williams, a son of the respondent, were witnesses to certain transactions connected with the respondent's injury. They were not called They were not called as witnesses, and this fact was commented on by the city's attorneys in their argument to the jury. In reply thereto the respondent's attorney used this language: "I knew when counsel came to argue this cause they would' say where is Bradshaw, the husband of Mrs. Bradshaw, and where is the son of Mrs. Hammock. I will tell you where. These people are poor, they look like it. Since they commenced this action they have got lucrative positions in the city of Tacoma and they asked me that if it was not necessary to corroborate the testimony of their mother and sister, not to call them because of their positions, and I did not do so. That is where they are." It is said that this exceeded the line of legitimate argument and requires a reversal of the case. We do not think, however, that such an extreme penalty should be

visited on the respondent. Jurors are generally men of intelligence, and usually distinguish clearly between facts that are matters of evidence, and facts stated by counsel in the course of the argument, and we do not think they were misled in this instance. The court, however, does not wish to be understood as sanctioning this line of argument. We recognize it as error, but refuse to reverse the case, because we do not think in this instance it in any way affected the result of the trial.

The judgment appealed from is affirmed.

MOUNT, C. J., and IADLEY, RUDKIN, and DUNBAR, JJ., concur. ROOT and CROW, JJ., not sitting.

(44 Wash. 586)

CARR et al. v. COHN. (Supreme Court of Washington. Dec. 7, 1906.) QUIETING TITLE-PARTIES-TRUSTEE OF EXPRESS TRUST.

Under Ballinger's Ann. Codes & St. § 4825. providing that a trustee of an express trust may sue without joining the person for whose benefit suit is prosecuted, one to whom property has been deeded without consideration and merely to hold title for the grantors and to convey as they might direct, is a proper person to bring an action to quiet title against an assignee of a satisfied mortgage on such property, executed by such grantors prior to the execution of the deed.

[Ed. Note. For cases in point, see Cent. Dig. vol. 41, Quieting Title, § 64.]

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by Geneva Carr and another against Paula Cohn. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Richard Saxe Jones, for appellant. Crary & Ogden and J. B. Alexander, for respondents.

ROOT, J. This is an action brought by respondents to quiet title to certain land in King county. From a judgment in their favor, this appeal is prosecuted.

The material facts are about as follows: The land in question was owned by one Thomas H. Clancy and wife. They made a deed of the same, without consideration, to respondent Geneva L. Carr, a sister of said Clancy. Said respondent was to merely hold the title to the property for the benefit of Clancy and wife, and convey the same to whomsoever they might direct. Before this conveyance, Clancy and wife had executed a mortgage to one Grunbaum, who received the same as secretary of the Northern Liquor Company. This mortgage was to secure $1,287 due said liquor company, and $300 due to said Grunbaum. The mortgage was duly recorded in the office of the county auditor. Thereafter some negotiations were had with appellant relative to assigning said note and mortgage to her as security for a

Wash.)

FALK v. A. F. SCHMITZ ALASKA DREDGING & MINING CO.

loan to the Northern Liquor Company of $1,500. She claims that she had theretofore made such a loan and advanced the money to the president of the company, one Rosenthal, who was her brother-in-law. Rosenthal testifies that he received said money such officer of the company, and that the same was used for its use and benefit. Grunbaum, the secretary, and one Quient, a bookkeeper of the liquor company, both denied this in their testimony. A written assignment was made of the mortgage to appellant, and this assignment was filed for record in the office of the county auditor, at the request of Quient for Rosenthal, but instead of being indexed in the name of Grunbaum, it appeared in the index as "Greenbaum," and, by reason of the arrangement of said indices, the name occurred on a different page from where it would have appeared had it been indexed correctly. The note was indorsed by Grunbaum, but the indorsement was subsequently erased. Appellant claims that the note and mortgage and assignment thereof were delivered to Rosenthal to be kept for her, and that the same, in some manner unknown to her, found their way into the hands of Grunbaum. The latter and Quient say that the negotiations for the loan were never consummated; that the assignment was made out and executed, but was not intended to be effective until the money was received, at which time the assignment, note, and mortgage were all to be delivered; that, never having received the money, the liquor company never delivered the note and mortgage, and did not know that the assignment of mortgage had been delivered. Grunbaum swears that he kept the note in his possession always, with the exception of a short time when he was sick and Quient held it. After all these transactions Clancy and wife paid the amount due upon the note and mortgage to Grunbaum, and the latter acknowledged satisfaction, and had the mortgage canceled of record. In the meantime the liquor company had gone into the hands of a trustee, Grunbaum being such trustee. Clancy and wife claimed that they knew nothing about appellant having loaned any money, nor about an assignment of the note or mortgage, or of the latter being of record; and it is urged by respondents herein that, by reason of the incorrect indexing of the assignment of mortgage, the record thereof was no notice whatever to said mortgagors, or to any one, of the existence of said assignment.

At the threshold of the case appellant insists that this action cannot be maintained by respondents, for the reason that they are not the real parties in interest. We think this contention cannot be upheld. Section 4825, Ballinger's Ann. Codes & St., is as follows: "An executor or administrator or guardian of a minor or a person of unsound mind, and a trustee of an express trust, or a person authorized by statute, may sue with

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out joining the person for whose benefit the suit is prosecuted. A trustee of an express trust within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another." We think that these respondents were trustees of and for Clancy and wife within the meaning of this statute, and are consequently authorized to maintain an action of this character.

A question as to the sufficiency and effect of the recording and indexing of said assignment of mortgage is presented, together with other questions, but, in view of our conclusion upon the question of the making of a loan, it becomes unnecessary to pass upon these questions. From the foregoing statement, it will be observed that the question of first importance is as to whether appellant made the loan as she claims. Upon this issue the evidence is flatly and irreconcilably conflicting, and mostly very unsatisfactory on both sides. The trial court found that appellant never made any loan. There is sufficient evidence, if believed, to support this finding. There is sufficient evidence, if believed, to support appellant's contention. It is a question of credibility of witnesses. We are not in as good a position as the trial court to judge of this. After a careful examination and consideration of all of the evidence, we are unable to say that the trial court reached an erroneous conclusion, or to satisfactorily arrive at one different. This being true, it follows that the judgment and decree of that court should be affirmed, and it is so ordered.

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S. subscribed for the entire capital stock of defendant corporation. He placed 100,000 shares in the treasury for sale for development purposes, and immediately transferred 80,000 shares to plaintiff, whereupon a certificate for such amount was issued to plaintiff by the corporation. Plaintiff receipted for the certificate, and immediately turned it over to the treasurer of the company under a pooling agreement between the stockholders. Held, that the corporation was not entitled to forfeit plaintiff's stock for plaintiff's alleged breach of an agreement to pay the corporation a certain sum for the stock, whether such agreement was made with the corporation or with S. personally.

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by Frederick Falk against the A. F. Schmitz Alaska Dredging & Mining Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Fred Page-Tustin and Arthur & Hutchinson, for appellant. Henry S. Noon and James E. Bradford. for respondent.

RUDKIN, J. Articles of incorporation of the A. F. Schmitz Alaska Dredging & Mining Company were filed in the office of the Secretary of State on the 11th day of July, 1903. On the 7th day of August, 1903, one A. F. Schmitz subscribed for the entire capital stock of the company, divided into 500,000 shares, of the par value of $1 each, and agreed to pay therefor by transferring to the company his interest in certain mining claims and a dredging contract, and placing 100,000 shares of the stock in the treasury of the company, to be disposed of to raise funds to carry on the business of the company. At the first meeting of the trustees of the company held on the following day a resolution was adopted, reciting the stock subscription, as above set forth, and accepting the same, and the president and secretary were authorized and directed to issue the entire capital stock to Schmitz as fully paid up, and to receive from him the 100,000 shares in the name of the treasurer, to be disposed of under such regulations as the trustees might adopt. At the same time a certificate for the 500.000 shares was regularly issued to Schmitz, who receipted for the same, and immediately assigned 100,000 shares thereof to the treasurer of the company as per the subscription agreement; 80.000 shares to one B. B. McCann; S0,000 to the plaintiff. Falk, and 150.000 shares to himself as trustee. A certificate for the 80,000 shares thus assigned to the plaintiff was thereupon issued to him. He immediately receipted the secretary for the certificate, and turned it over to the treasurer of the company under the following provision of the by-laws: "The company will not recognize or accept any orders for stock issued by any member of the company, against any stock pooled by said members, and none of the pooled stock shall be released until the treasury stock is all sold or the company becomes a dividend payer," taking his receipt therefor. Soon after this the plaintiff went to Europe, and did not return to Seattle until the month of September, 1904. In the meantime, a new board of trustees, appointed by Schmitz, met, adopted a resolution, reciting that the plaintiff had agreed to pay the company a certain unnamed sum of money for the 80,000 shares of promotion stock, and that he had not paid the same, and ordered the cancellation of the stock certificate theretofore issued to the plaintiff. This action was brought to vacate and set aside the resolution canceling the stock certificate, and to compel the proper officers of the company to reissue the stock to the plaintiff. The court below found in favor of the plaintiff and the defendant appeals.

Many important questions of corporation law are discussed in the briefs, but there is little room for their application in this case.

It is conceded, and must be conceded, that Schmitz subscribed for and became the unqualified owner of the entire capital stock of the company. He assigned 80.000 shares of this stock to the respondent who received a certificate therefor. The title of Schmitz is not questioned, but it is claimed that the respondent failed to comply with some collateral agreement to sell the treasury stock or furnish money from his own funds to meet certain obligations of the company. Let us concede this to be true. If such agreement was made with the company, it could not forfeit the stock for a mere breach of this contract. If, on the other hand, the agreement was with Schmitz (which seems to be the case), the company could not forfeit the stock of one stockholder because of his failure to fulfill his agreement with another. The entire defense is built upon the theory that the stock certificate in controversy was never delivered to the respondent, and that a certain sum of money was to be paid before such delivery. But the records of the appellant corporation, and all the testimony, show the contrary. The respondent was therefore the owner of the stock, regardless of any agree ment he may have made with the corpora tion, its promoters, or stockholders; and the remedy for the violation of any such agreement was not by a forfeiture of the stock.

The action of the board of trustees was without warrant or authority of law, and the judgment of the court below is accordingly affirmed.

MOUNT, C. J., and ROOT, DUNBAR, and CROW, JJ., concur.

FULLERTON and HADLEY, JJ., not sit

ting.

(44 Wash. 596)

JUMP v. NORTH BRITISHI & MERCANTILE INS. CO. OF LONDON AND EDINBURGII.

(Supreme Court of Washington. Dec. 7, 1906.) 1. MORTGAGES-NATURE--EFFECT.

A mortgage is a mere lien ar security for the payment of money, and does not convey any title to the mortgagee.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 35, Mortgages, §§ 270, 273.]

2. INSURANCE-TRANSFER OF INTEREST-CONVEYANCE AND MORTGAGE.

Where insured conveyed the property to another and took a mortgage back to secure the price, such transaction constituted a change of interest which avoided the policy, providing that it should be void if any change other than by death of the assured should take place in the interest. title, or possession of the subject of insurance without the consent of the in

surer.

[Ed. Note. For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 803, 804.]

Appeal from Superior Court, Snohomish County; W. W. Black, Judge.

Action by John A. Jump against the North British & Mercantile Insurance Company of

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